Crimes Legislation Amendment (Economic Disruption) Act 2021 (3 of 2021)

Schedule 3   Buy-backs

Part 1   Amendments

Proceeds of Crime Act 2002

2   Section 103

Repeal the section, substitute:

103 Court may make orders relating to buying back forfeited property

(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.

(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.

(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.

(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.

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

(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.