Proceeds of Crime Act 2002

CHAPTER 2 - THE CONFISCATION SCHEME

PART 2-3 - FORFEITURE ON CONVICTION OF A SERIOUS OFFENCE

Division 3 - Recovery of forfeited property

SECTION 103 Court may make orders relating to buying back forfeited property

103(1)
If property is forfeited to the Commonwealth under section 92 , the court that made the *restraining order referred to in paragraph 92(1)(b) may, if:

(a) a person who claims to have had an *interest in the property before the forfeiture has made an application under section 104A for an order under this section; and

(b) the court is satisfied that the person had the interest immediately before the forfeiture; and

(c) the court is satisfied that the person is not a *suspect in relation to the restraining order; and

(d) the court is satisfied that, at the time when the offence mentioned in paragraph 92(1)(a) was committed, the person did not have knowledge of the conduct constituting the offence; and

(e) in a case where the property was *proceeds of an offence or an *instrument of an offence - the court is satisfied that, when the property became proceeds of an offence or an instrument of an offence, the person had no knowledge of the conduct constituting the offence; and

(f) the court is satisfied that, if the interest were to be transferred to the person under section 105 :

(i) the amount paid to the Commonwealth under paragraph 105(1)(c) would not be property that is covered by subsection (6); and

(ii) if the whole or a part of the amount paid to the Commonwealth under paragraph 105(1)(c) would be borrowed by the person under a loan - the person ' s financial circumstances are such that the person will be able to repay the loan, meet the person ' s eligible living expenses and meet any eligible debts of the person, using property that is not covered by subsection (6); and

(g) the court is satisfied that:

(i) it would not be contrary to the public interest for the interest to be transferred to the person; and

(ii) there is no other reason why the interest should not be transferred to the person;

make an order:

(h) declaring the nature, extent and value (as at the time when the order is made under this subsection) of the interest; and

(i) declaring that the forfeiture ceases to operate in relation to the interest if payment is made under section 105 .

Note:

Money can be property.

103(2)
For the purposes of this section, it is immaterial whether the loan mentioned in subparagraph (1)(f)(ii) was made under an arrangement entered into before or after the application mentioned in paragraph (1)(a) was made.

103(3)
For the purposes of this section, loan includes anything that may reasonably be regarded as equivalent to a loan, and borrow has a corresponding meaning.

103(4)
For the purposes of this section, each of the following are eligible living expenses of the person:

(a) the person ' s reasonable living expenses;

(b) the reasonable living expenses of any of the *dependants of the person;

(c) the reasonable business expenses of the person.

103(5)
For the purposes of this section, an eligible debt of the person is a debt incurred in good faith by the person.

103(6)
This subsection covers any of the following property:

(a) property that is wholly or partly derived or realised by the person, directly or indirectly, from *unlawful activity;

(b) property that is used in, or in connection with, the commission of unlawful activity;

(c) property that is intended to be used in, or in connection with, the commission of unlawful activity.

View history note

History

S 103 substituted by No 3 of 2021, s 3 and Sch 3 item 2, effective 17 February 2021. No 3 of 2021, s 3 and Sch 3 item 15 contains the following transitional provision:

15 Transitional - sections 103 and 104 of the Proceeds of Crime Act 2002
15
Despite the amendments made by items 2 to 5, the Proceeds of Crime Act 2002 continues to apply, in relation to:
(a) an application made before the commencement of this item for an order under section 103 of that Act; and
(b) an order made under section 103 of that Act:

(i) after the commencement of this item, in response to such an application; or

(ii) before the commencement of this item;

as if those amendments had not been made.

S 103 formerly read:

SECTION 103 Court may make orders relating to buying back forfeited property
103
If property is forfeited to the Commonwealth under section 92, the court that made the * restraining order referred to in paragraph 92(1)(b) may, if:

(a) a person who claims an * interest in the property applies under section 104 for an order under this section; and

(b) the court is satisfied that:

(i) it would not be contrary to the public interest for the interest to be transferred to the person; and

(ii) there is no other reason why the interest should not be transferred to the person;

make an order:

(c) declaring the nature, extent and value (as at the time when the order is made) of the interest; and

(d) declaring that the forfeiture ceases to operate in relation to the interest if payment is made under section 105.

Disclaimer and notice of copyright applicable to materials provided by CCH Australia Limited

CCH Australia Limited ("CCH") believes that all information which it has provided in this site is accurate and reliable, but gives no warranty of accuracy or reliability of such information to the reader or any third party. The information provided by CCH is not legal or professional advice. To the extent permitted by law, no responsibility for damages or loss arising in any way out of or in connection with or incidental to any errors or omissions in any information provided is accepted by CCH or by persons involved in the preparation and provision of the information, whether arising from negligence or otherwise, from the use of or results obtained from information supplied by CCH.

The information provided by CCH includes history notes and other value-added features which are subject to CCH copyright. No CCH material may be copied, reproduced, republished, uploaded, posted, transmitted, or distributed in any way, except that you may download one copy for your personal use only, provided you keep intact all copyright and other proprietary notices. In particular, the reproduction of any part of the information for sale or incorporation in any product intended for sale is prohibited without CCH's prior consent.