Proceeds of Crime Act 2002

CHAPTER 2 - THE CONFISCATION SCHEME

PART 2-2 - FORFEITURE ORDERS

Division 2 - Other relevant matters when a court is considering whether to make forfeiture orders

SECTION 57 Court may make orders relating to buying back forfeited property

57(1)
If:

(a) a court makes a *forfeiture order against property; and

(b) a person who claims to have had an *interest in the property before the forfeiture order was made has made an application under section 57A for an order under this section; and

(c) the court is satisfied that the person had the interest immediately before the forfeiture order was made; and

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

(e) in a case where the property was covered by a *restraining order when the forfeiture order was made - the court is satisfied that the person is not a suspect in relation to the restraining order; and

(f) in a case where the forfeiture order was made under section 47 or 48 - the court is satisfied that, when the conduct that is the subject of the forfeiture order occurred, the person had no knowledge of the conduct; and

(g) 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

(h) the court is satisfied that, if the interest were to be transferred to the person under section 89 :

(i) the amount paid to the Commonwealth under paragraph 89(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 89(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

(i) 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;

the court may make an order:

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

(k) declaring that the interest may be excluded, under section 89 , from the operation of the forfeiture order.

Note:

Money can be property.

57(2)
For the purposes of this section, it is immaterial whether the loan mentioned in subparagraph (1)(h)(ii) was made under an arrangement entered into before or after the application mentioned in paragraph (1)(b) was made.

57(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.

57(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.

57(5)
For the purposes of this section, an eligible debt of the person is a debt incurred in good faith by the person.

57(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 57 substituted by No 3 of 2021, s 3 and Sch 3 item 1, effective 17 February 2021. No 3 of 2021, s 3 and Sch 3 item 14 contains the following transitional provision:

14 Transitional - section 57 of the Proceeds of Crime Act 2002
14
Despite the amendment made by item 1, 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 57 of that Act; and
(b) an order made under section 57 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 that amendment had not been made.

S 57 formerly read:

SECTION 57 A person may buy back forfeited property
57
A court that makes a * forfeiture order against property may, if it is satisfied that:

(a) it would not be contrary to the public interest for a person ' s * interest in the property to be transferred to the person; and

(b) there is no other reason why the person ' s interest in the property should not be transferred to that person;
by order:

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

(d) declare that the interest may be excluded, under section 89, from the operation of the forfeiture order.

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