Crimes Legislation Amendment (Serious and Organised Crime) Act (No. 2) 2010 (4 of 2010)

Schedule 1   Proceeds of crime

Part 1   Exclusion, recovery and compensation

Proceeds of Crime Act 2002

57   After section 94

Insert:

94A Compensating for proportion of property not derived or realised from commission of any offence

(1) The court that made a *restraining order referred to in paragraph 92(1)(b) must make an order that complies with subsection (2) if:

(a) a person (the applicant ) has applied for an order under this section; and

(b) the court is satisfied that the applicant has an *interest in property covered, or that was at any time covered, by the restraining order; and

(c) a person has been convicted of a *serious offence to which the restraining order relates; and

(d) the court is satisfied that a proportion of the value of the applicant's interest was not derived or realised, directly or indirectly, from the commission of any offence; and

(e) the court is satisfied that the applicant's interest is not an *instrument of any offence.

(2) An order under this section must:

(a) specify the proportion found by the court under paragraph (1)(d); and

(b) direct the Commonwealth, once the property has vested absolutely in it, to:

(i) if the property has not been disposed of - dispose of the property; and

(ii) pay the applicant an amount equal to that proportion of the difference between the amount received from disposing of the property and the sum of any payments of the kind referred to in paragraph 100(1)(b) in connection with the forfeiture.

(3) A person who claims an *interest in property covered by a *restraining order referred to in paragraph 92(1)(b) may apply to the court that made the restraining order for an order under this section at any time.

(4) However, if the property has already been forfeited under this Part, the person cannot, unless the court gives leave, apply under subsection (3) if he or she:

(a) either:

(i) was given a notice under subsection 92A(1) in relation to the property; or

(ii) was not given such a notice because of subsection 92A(2); and

(b) did not make the application under subsection (3) before that forfeiture.

(5) The court may give the person leave to apply if the court is satisfied that:

(a) the person had a good reason for not making the application before the forfeiture; or

(b) the person now has evidence relevant to the application that was not available before the forfeiture; or

(c) there are special grounds for granting the leave.

(6) The person must give written notice to the *DPP of both the application and the grounds on which the order is sought.

(7) The *DPP may appear and adduce evidence at the hearing of the application.

(8) The *DPP must give the applicant notice of any grounds on which it proposes to contest the application. However, the DPP need not do so until it has had a reasonable opportunity to conduct *examinations in relation to the application.

(9) The application must not be heard until the *DPP has had a reasonable opportunity to conduct *examinations in relation to the application.