Proceeds of Crime Act 2002

CHAPTER 2 - THE CONFISCATION SCHEME

PART 2-2 - FORFEITURE ORDERS

Division 5 - Reducing the effect of forfeiture orders

Subdivision B - Excluding property from a forfeiture order

SECTION 73 Making exclusion orders

73(1)

A court that made a * forfeiture order, or that is hearing, or is to hear, an application (a forfeiture application ) for a forfeiture order, must make an order excluding a specified *interest in property from forfeiture (an exclusion order ) if:

(a) a person applies for the exclusion order; and

(b) the forfeiture order, or the forfeiture application, specifies property in which the applicant has an interest; and

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(c) if the forfeiture order was (or the forfeiture order applied for would be) made under section 47 or 49 - the court is satisfied that the applicant's interest in the property is neither of the following:

(i) *proceeds of *unlawful activity;

(ii) if an offence on which the order was (or would be) based is a *serious offence - an instrument of any serious offence; and

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(d) if the forfeiture order was (or the forfeiture order applied for would be) made under section 48 - the court is satisfied that the applicant's interest in the property is neither proceeds nor an instrument of any of the offences to which the forfeiture order or forfeiture application relates.

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(e) (Repealed by No 4 of 2010)

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History

S 73(1) amended by No 4 of 2010, s 3 and Sch 1 items 20 to 22, by inserting " a specified *interest in " before " property " (first occurring), substituting " property in which the applicant has an interest " for " the applicant's property " in para (b) and substituting paras (c) and (d) for paras (c), (d) and (e), effective 20 February 2010. No 4 of 2010, s 3 and Sch 1 item 35 contains the following application provision:

Application
(1)
Subdivisions B and C of Division 5 of Part 2-2 of the Proceeds of Crime Act 2002 , as amended, apply in relation to forfeiture orders under section 47 or 49 of that Act that relate to restraining orders applied for on or after 20 February 2010, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

(2)
Subdivisions B and C of Division 5 of Part 2-2 of the Proceeds of Crime Act 2002 , as amended, apply in relation to forfeiture orders under section 48 of that Act applied for on or after 20 February 2010, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

Paras (c), (d) and (e) formerly read:

(c) if the forfeiture order was (or the forfeiture order applied for would be) made under section 47 or 49 and the applicant is the person on whose commission of an offence the order was (or would be) based - the court is satisfied that the property to be specified in the exclusion order is neither:

(i) * proceeds of * unlawful activity; nor

(ii) if an offence on which the order is (or would be) based is a * serious offence - an * instrument of any serious offence; and

(d) if the forfeiture order was (or the forfeiture order applied for would be) made under section 47 or 49 and the applicant is not the person on whose commission of an offence the order was (or would be) based - the court is satisfied that:

(i) the applicant was not, in any way, involved in the commission of any of the offences to which the forfeiture order or forfeiture application relates; and

(ii) the property to be specified in the exclusion order is not proceeds of unlawful activity; and

(iii) if an offence on which the order is (or would be) based is a serious offence - the property to be specified in the exclusion order is not an instrument of any serious offence; and

(e) if the forfeiture order was (or the forfeiture order applied for would be) made under section 48 - the court is satisfied that:

(i) the applicant was not, in any way, involved in the commission of any of the offences to which the forfeiture order or forfeiture application relates; and

(ii) the property to be specified in the exclusion order is neither proceeds nor an * instrument of any of those offences.

S 73(1) amended by No 3 of 2010, s 3 and Sch 2 items 55 to 57, by substituting " a *serious " for " a *terrorism " and substituting " any serious " for " any terrorism " in para (c)(ii) and substituting " serious " for " terrorism " (wherever occurring) in para (d)(iii), applicable in relation to forfeiture orders applied for on or after 20 February 2010, whether the conduct constituting the offence concerned occurred or occurs before, on or after that commencement.

73(2)
An * exclusion order must:

(a) specify the nature, extent and value (at the time of making the order) of the *interest concerned; and

(b) direct that the interest be excluded from the operation of the relevant * forfeiture order; and

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(c) if the interest has vested (in law or equity) in the Commonwealth under this Part and is yet to be disposed of - direct the Commonwealth to transfer the interest to the applicant; and

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(d) if the interest has vested (in law or equity) in the Commonwealth under this Part and has been disposed of - direct the Commonwealth to pay the applicant an amount equal to the value specified under paragraph (a).

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View history note

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