Criminal Proceeds Confiscation Act 2002

An Act to provide for the confiscation of the proceeds of crime and property connected to persons convicted of particular serious drug offences, the payment to the State of unexplained wealth, and for other purposes

Long title amd 2013 No. 21s 14

1Short title

This Act may be cited as the Criminal Proceeds Confiscation Act 2002.

2Commencement

(1)This Act, other than the following provisions, commences on 1 January 2003—

(a)chapter 12, part 4;

(b)section 283 and schedule 3, items 49 and 50;

(c)section 339 and schedule 4, to the extent the schedule amends the Trustee Companies Act 1968.

(2)Schedule 3, items 49 and 50 are taken to have commenced on 1 January 2002.

(3)The following provisions commence on assent—

(a)chapter 12, part 4;

(b)section 283;

(c)section 339 and schedule 4, to the extent the schedule amends the Trustee Companies Act 1968.

3Definitions

The dictionary in schedule 6 defines particular terms used in this Act.

4Objects

(1)The main object of this Act is to remove the financial gain and increase the financial loss associated with illegal activity, whether or not a particular person is convicted of an offence because of the activity.

(2)It is also an important object of this Act—

(a)to deprive persons of the following—

(i)illegally acquired property, tainted property and benefits derived from the commission of offences;

(ii)the benefits derived from contracts about confiscation offences;

(iii)wealth that persons can not satisfy a court was lawfully acquired; and

(b)to deter persons from committing serious criminal offences, including by increasing the financial risk associated with committing serious criminal offences; and

(c)to prevent the reinvestment of financial gain from illegal activity in further illegal activity; and

(d)to assist law enforcement agencies to effectively trace—

(i)property acquired by persons who engage in illegal activity; and

(ii)tainted property; and

(iii)benefits derived from the commission of offences; and

(iv)amounts of unexplained wealth; and

(e)to forfeit to the State property of, or associated with, persons who commit qualifying offences, and against whom serious drug offender confiscation orders are made, in recognition of the impact of qualifying offences on the community and the justice system; and

(f)to ensure orders of other States restraining or forfeiting property under corresponding laws may be enforced in Queensland; and

(g)to protect property honestly acquired for sufficient consideration by persons innocent of illegal activity from forfeiture and other orders affecting property.

(3)This Act provides for 3 separate schemes to achieve its objects.

(4)The scheme in chapter 2 does not depend on a charge or conviction and is administered by the commission.

(5)The scheme in chapter 2A relates to the charge or conviction of particular serious offences involving drugs and is administered by the commission.

(6)The scheme in chapter 3 relies on a person being charged and convicted (as defined in this Act) of a confiscation offence and is administered by the DPP.

(7)Despite the similarities between the schemes, each is separate and none of the schemes are to be construed as limiting either of the other schemes, unless this Act otherwise expressly provides.

s 4 amd 2013 No. 21s 15

5Act binds State

(1)This Act binds all persons, including the State and, as far as the legislative power of Parliament permits, the Commonwealth and the other States.

(2)Nothing in this Act makes the State, the Commonwealth or the other States liable to be prosecuted for an offence.

5ATerritorial application of Act

(1)This Act applies both within and outside Queensland.

(2)This Act applies outside Queensland to the full extent of the extraterritorial legislative power of the Parliament.

s 5A ins 2009 No. 2s 4

6Notes

A note in the text of this Act is part of this Act.

7Examples in sch 1

(1)An example in schedule 1, part 1 is an example of the practical operation of the application of the definition illegally acquired property.

Note—

For the definition, see section 22.

The examples apply in the same way to the practical operation of the definition serious crime derived property.

(2)An example in schedule 1, part 2 is an example of the practical operation of chapter 2, part 5.

(3)An example in schedule 1, part 3 is an example of the practical operation of the application of the definition tainted property.

Note—

For the definition, see section 104.

(4)An example in schedule 1, part 4 is an example of the practical operation of chapter 3, part 7, division 3.

8Proceedings are civil, not criminal

(1)This section applies to a proceeding under this Act other than a prosecution for an offence against this Act.

(2)The proceeding is not a criminal proceeding.

(3)Questions of fact in the proceeding must be decided on the balance of probabilities.

(4)The rules of evidence applying in civil proceedings apply to the proceeding.

(5)The rules of construction applying only to the criminal law do not apply in the interpretation of this Act for the proceeding.

(6)The Uniform Civil Procedure Rules 1999, to the extent that they are not inconsistent with this Act, apply to the proceeding.

s 8 amd 2004 No. 43s 34

9Orders under this Act not a sentence

An order under this Act requiring the payment of an amount or imposing a penalty, other than for a conviction for an offence against this Act, or restraining or forfeiting property, is not a punishment or sentence for any offence.

10Operation of other laws not affected

Nothing in this Act limits or restricts the operation of any other law providing for the forfeiture of property.

11Interstate operation of particular orders

(1)For the purpose of enabling a restraining order, a forfeiture order or a serious drug offender confiscation order to be registered under the corresponding law of another State, the order may be expressed to apply to property in that State.

(2)An order mentioned in subsection (1) does not apply to property in another State, unless—

(a)a corresponding law of the other State provides that the order has effect in the State after registration under that law; or

(b)the property was movable property and was located in Queensland or another State with a corresponding law when the order took effect.

s 11 amd 2013 No. 21s 16

12Proceedings by the State and meaning of appropriate officer

(1)If the State may start a proceeding under this Act, the proceeding may be started for the State as follows—

(a)for chapter 2 or 2A—

(i)by the commission; or

(ii)with the approval of the commission, by a police officer; or

(b)for chapter 3 or 4, by an appropriate officer; or

(c)for chapter 10, part 1, by an appropriate officer.

(2)A proceeding taken by or for the State must be taken under the title “State of Queensland”.

(3)The DPP is the solicitor on the record for the proceeding.

(4)Without limiting subsection (2), any document of the State necessary for the proceeding under a provision of this Act may be signed by a person who is an appropriate officer for that provision.

(5)For this Act, appropriate officer—

(a)for subsection (1)(c), chapter 2, chapter 2A or chapter 10, means—

(i)the chairperson; or

(ii)an authorised commission officer; or

(iii)the DPP, a deputy DPP, or a lawyer appointed to assist the DPP in the performance of the DPP’s functions; or

(b)for subsection (1)(b), chapter 3 or chapter 4—

(i)means a person mentioned in paragraph (a)(iii); or

(ii)for the purposes of an application to a Magistrates Court for a forfeiture order or pecuniary penalty order and related matters—includes the commissioner of the police service or another police officer.

s 12 amd 2013 No. 21 s 17; 2014 No. 21 s 94(2) sch 2; 2016 No. 19 s 46 sch 1

13Explanation of ch 2

(1)This chapter enables proceedings to be started to confiscate property derived from illegal activity whether or not a person who engaged in the relevant activity has been convicted of any offence.

(2)Also, this chapter enables proceedings to be taken to confiscate property derived from a serious crime related activity even though the person who engaged in the relevant activity has not been identified.

(3)The chapter enables the Supreme Court, as a preliminary step, to make a restraining order preventing property, whether the property of the person who engaged in the relevant illegal activity or the serious crime derived property of someone else, being dealt with without the court’s leave.

(4)The court must make a forfeiture order confiscating the property (unless it is not in the public interest to make the order) if it finds it is more probable than not that—

(a)the person whose suspected serious crime related activity was the basis of the relevant restraining order engaged in a serious crime related activity; or

(b)the property is serious crime derived property because of a serious crime related activity of a person, even though a particular person suspected of having engaged in the serious crime related activity can not be identified.

(5)The court may also make a proceeds assessment order against a person who has engaged in a serious crime related activity, requiring the person to pay to the State the amount the court decides is the value of proceeds derived from the person’s illegal activity over a period of up to 6 years before the application for the order is made.

(6)The chapter also enables the court to make an unexplained wealth order against a person, requiring the person to pay to the State an amount worked out under section 89L(2) or (3).

(7)The amount payable under the proceeds assessment order or unexplained wealth order may be recovered as a debt payable to the State.

(8)The chapter contains other ancillary provisions including provisions giving persons opportunities to have lawfully acquired property excluded from the effect of restraining orders and forfeiture orders.

s 13 amd 2013 No. 21s 18

14Application of ch 2

Subject to the limitation period imposed under section 58, this chapter applies in relation to illegal activity or serious crime related activity whether happening before or after the commencement of this section.

15Meaning of illegal activity

An illegal activity is an activity that is—

(a)a serious crime related activity; or

(b)an act or omission that is an offence against the law of Queensland or the Commonwealth; or

(c)an act or omission committed outside Queensland that—

(i)is an offence against the law of the place in which it is committed; and

(ii)would be an offence mentioned in paragraph (b) if it were committed in Queensland.

Note—

This definition applies to the whole Act. See the dictionary.

16Meaning of serious crime related activity and external serious crime related activity

(1)Anything done by a person that was, when it was done, a serious criminal offence, is a serious crime related activity.

(2)Subsection (1) applies whether or not the person has been charged with the offence or, if charged—

(a)has been tried; or

(b)has been tried and acquitted; or

(c)has been convicted, even if the conviction has been quashed or set aside.

(3)

An external serious crime related activity is a serious crime related activity arising out of an offence under the law of the Commonwealth or a place outside Queensland, including outside Australia, that, if the offence had been committed in Queensland, would be a serious criminal offence.

s 16 amd 2009 No. 2s 5

17Meaning of serious criminal offence

(1)

An offence is a serious criminal offence if it is any of the following—

(a)an indictable offence for which the maximum penalty is at least 5 years imprisonment;

(b)an offence prescribed under a regulation for this definition;

(c)an offence under the law of the Commonwealth or a place outside Queensland, including outside Australia, that, if the offence had been committed in Queensland, would be an offence mentioned in paragraph (a) or (b);

(d)an ancillary offence to an offence mentioned in paragraph (a), (b) or (c) including an offence that would be an ancillary offence to an offence mentioned in paragraph (c) if the offence had been committed in Queensland.

(2)In this section—

indictable offence includes an indictable offence dealt with summarily.

s 17 amd 2009 No. 2s 6; 2010 No. 42s 214 sch

18Meaning of proceeds

Proceeds, in relation to an activity, includes property and another benefit derived because of the activity—

(a)by the person who engaged in the activity; or

(b)by another person at the direction or request, directly or indirectly, of the person who engaged in the activity.

19Meaning of property

Property of a person—

(a)includes—

(i)an interest the person has in a licence a person must hold to carry on a particular business; and

(ii)an interest the person has in the goodwill of a business; and

(iii)property of someone else that is under the effective control of the person; and

(b)does not include property of the person that is under the effective control of someone else.

Note—

This provision is in addition to the definition of property given by the Acts Interpretation Act 1954, schedule 1.

s 19 amd 2004 No. 43s 35; 2013 No. 39s 110(1)sch 3pt 1

20Meaning of effective control of property

(1)Property may be under a person’s effective control even if—

(a)the person does not have a direct or indirect right, power or privilege over, or in relation to, the property; or

(b)the person does not otherwise have an interest in the property.

(2)Regard may be had to all relevant matters in deciding—

(a)whether or not property is under a person’s effective control; or

(b)whether or not there are reasonable grounds to suspect that property is under a person’s effective control.

(3)Matters to which regard may be had include, for example—

(a)shareholdings in, debentures over, or directorships of, a corporation that has a direct or indirect interest in the property; and

(b)a trust that has a relationship to the property; and

(c)family, domestic, business and other relationships between any of the following and other persons—

(i)persons having an interest in the property;

(ii)corporations that have a direct or indirect interest in the property;

(iii)trusts that have a relationship to the property.

(4)However, property is under the effective control of a person (the first person) if the property—

(a)is held by another person for the ultimate benefit of the first person; or

(b)was a gift given by the first person to another person within 6 years before the making of an application for a restraining order, whether or not the gift is still in the other person’s possession.

(5)Subsection (6) applies if—

(a)a restraining order is made for particular property because a person to whom the restraining order relates has effective control of the property; and

(b)the restraining order directs the public trustee to take control of the property.

(6)For the purposes of the Supreme Court’s power to make further orders under this chapter in relation to the property in reliance, directly or indirectly, on a provision of this Act that mentions property that is, or is not, under the effective control of the person, the property is taken to continue to be under the effective control of the person.

Note—

This definition applies to the whole Act. See the dictionary.

s 20 amd 2009 No. 2s 7

21Meaning of benefit and benefit derived

(1)

Benefit includes service and advantage.

(2)

A benefit derived by a person includes a benefit derived by someone else at the person’s request or direction.

22Meaning of illegally acquired property

(1)Property is illegally acquired property if it is all or part of the proceeds of an illegal activity.

(2)Property is also illegally acquired property if—

(a)it is all or part of the proceeds of dealing with illegally acquired property; or

(b)all or part of it was acquired using illegally acquired property.

(3)For subsection (2), it does not matter whether the property dealt with or used in the acquisition became illegally acquired property because of subsection (1) or subsection (2).

(4)Subsections (1) and (2) apply whether or not the activity, dealing or acquisition because of which the property became illegally acquired property happened before the commencement of this section.

(5)Also, if the proceeds of dealing with illegally acquired property are credited to or placed in an account, the proceeds do not lose their identity as proceeds because they are credited to or placed in an account.

Note—

Generally, illegally acquired property is used in this chapter, but some provisions, for example, section 28(3)(c), use the narrower expression serious crime derived property.

This definition applies to the whole Act. See the dictionary.

23Meaning of serious crime derived property

(1)Property is serious crime derived property if it is all or part of the proceeds of a serious crime related activity.

(2)Property is also serious crime derived property if—

(a)it is all or part of the proceeds of dealing with serious crime derived property; or

(b)all or part of it was acquired using serious crime derived property.

(3)For subsection (2), it does not matter whether the property dealt with or used in the acquisition became serious crime derived property because of subsection (1) or subsection (2).

(4)Subsections (1) and (2) apply whether or not the activity, dealing or acquisition because of which the property became serious crime derived property happened before the commencement of this section.

(5)Also, if the proceeds of dealing with serious crime derived property are credited to or placed in an account, the proceeds do not lose their identity as proceeds because they are credited to or placed in an account.

24Definitions for sdiv 2

In this subdivision—

character of property means its character as either illegally acquired property or serious crime derived property.

property means property that is either of the following because of subdivision 1—

(a)illegally acquired property;

(b)serious crime derived property.

25Property retains its character despite disposal

Illegally acquired property or serious crime derived property retains its character—even if it is disposed of, including by using it to acquire other property—until it stops being property of that character under section 26.

26When property stops being illegally acquired property or serious crime derived property

Property stops being illegally acquired property or serious crime derived property—

(a)when it is acquired by a person for sufficient consideration, without knowing, and in circumstances not likely to arouse a reasonable suspicion, that the property was illegally acquired property or serious crime derived property; or

(b)when it vests in a person on the distribution of the estate of a deceased; or

(c)when it is disposed of under this Act, including when discharging a pecuniary penalty order, a proceeds assessment order or an unexplained wealth order; or

(d)when it is the proceeds of the disposal of property under this Act other than by sale under a condition of a restraining order or by order of the Supreme Court under section 46, 93ZP or 138; or

(e)when it is acquired by Legal Aid as payment of reasonable legal expenses payable because of an application under this Act or in defending a charge of an offence; or

(f)in circumstances prescribed under a regulation.

s 26 amd 2013 No. 21s 19

27Property may again become illegally acquired property or serious crime derived property

If property that was, but is no longer, illegally acquired property or serious crime derived property is again acquired by the person who owned it when it had that character, the property again becomes property of that character unless it is acquired by the person under an order under this Act.

Note—

For an example of the practical operation of this provision, see schedule 1, part 1, example 2.

28Application for restraining order

(1)The State may apply to the Supreme Court for an order (restraining order) restraining any person from dealing with property stated in the order (the restrained property) other than in a stated way or in stated circumstances.

(2)The application—

(a)must be supported by an affidavit of an authorised commission officer or a police officer; and

(b)may be made without notice to any person to whom it relates.

(3)The application may relate to all or any of the following property—

(a)for property of a person suspected of having engaged in 1 or more serious crime related activities (a prescribed respondent)—

(i)stated property; or

(ii)a stated class of property; or

(iii)all property; or

(iv)all property other than stated property; or

(v)all or stated property acquired after the restraining order is made;

(b)stated property, or a stated class of property, of a stated person, other than a prescribed respondent;

(c)stated property suspected of being serious crime derived property because of a serious crime related activity of a person, even though a particular person suspected of having engaged in the serious crime related activity can not be identified.

(4)An application for a restraining order that relates to property of a person suspected of having engaged in 1 or more external serious crime related activities may be made only if the person whose property it is lives in Queensland or the property is situated in Queensland.

(5)The court may refuse to consider the application until the State gives the court all the information the court requires about the application in the way the court requires.

Example—

The court may require additional information supporting the application to be given by affidavit or statutory declaration.

s 28 amd 2009 No. 2s 8; 2013 No. 21s 20

29Affidavit

(1)The affidavit of the authorised commission officer or police officer must state—

(a)for property mentioned in section 28(3)(a) if the serious crime related activity involves an offence stated in schedule 2, part 1—the officer suspects the prescribed respondent—

(i)has engaged in 1 or more serious crime related activities; and

(ii)the reason for the suspicion; or

(b)for property mentioned in section 28(3)(a) if paragraph (a) does not apply—the officer suspects the prescribed respondent—

(i)has engaged in 1 or more serious crime related activities; and

(ii)has derived proceeds from engaging in 1 or more of these serious crime related activities; and

(iii)the reason for the suspicion; or

(c)for property mentioned in section 28(3)(b)—the officer suspects the property is serious crime derived property because of a serious crime related activity of a prescribed respondent and the reason for the suspicion; or

(d)for property mentioned in section 28(3)(c)—the officer suspects the property is serious crime derived property and the reason for the suspicion.

(2)Also, for property of a person suspected of having engaged in 1 or more external serious crime related activities, the affidavit must state that the authorised commission officer or police officer has made due enquiry and is satisfied that no action has been taken under a law of the Commonwealth or any place outside Queensland, including outside Australia, against property of the prescribed respondent that is the subject of the application as a result of the external serious crime related activity.

s 29 amd 2009 No. 2s 9; 2013 No. 21s 21

30Notice of application

(1)Subject to section 30A(2), the State must give notice of the application—

(a)to each person whose property the authorised commission officer or police officer whose affidavit supports the application reasonably believes is the subject of the application; and

(b)to anyone else the authorised commission officer or police officer whose affidavit supports the application considers has an interest in the property the subject of the application.

(2)Notice given under subsection (1)(a) must be accompanied by a copy of the affidavit supporting the application.

(3)Notice given under subsection (1)(b) must include a statement informing the person that if the person asks, the person will be given a copy of the affidavit supporting the application.

s 30 sub 2003 No. 55s 44A

ch 2 pt 3 div 2 hdg sub 2003 No. 55s 44A

30AHearing of application

(1)The Supreme Court must not hear an application for a restraining order unless satisfied the person whose property is the subject of the application has received reasonable notice of the application.

(2)Despite subsection (1), the court must consider the application without notice having been given if an appropriate officer asks the court to do so.

(3)However, the Supreme Court may, at any time before finally deciding the application, direct the State to give notice of the application to a stated person or class of persons in the way, and within the time, the court considers appropriate.

(4)A person whose property is the subject of the application, and anyone else who claims to have an interest in the property, may appear at the hearing of the application.

s 30A ins 2003 No. 55s 44A

amd 2013 No. 21s 22

31Making restraining order

(1)The Supreme Court must make a restraining order in relation to property if, after considering the application and the relevant affidavit, it is satisfied there are reasonable grounds for the suspicion on which the application is based.

(2)However, the court may refuse to make the order if—

(a)the court is satisfied in the particular circumstances it is not in the public interest to make the order; or

(b)the State fails to give the court the undertakings the court considers appropriate for the payment of damages or costs, or both, in relation to the making and operation of the order.

(3)The commission or, if the application is made by a police officer, the commissioner of the police service may, for the State, give the court the undertakings the court requires.

(4)A restraining order does not apply to property of a person acquired after the order is made unless the order expressly states it applies to the property.

(5)Also, the making of a restraining order does not prevent the person whose property is restrained under the order from giving Legal Aid a charge over the property as a condition of an approval to give legal assistance under the Legal Aid Act in relation to—

(a)a proceeding under this Act; or

(b)a criminal proceeding in which the person is a defendant, including any proceeding on appeal against conviction or sentence.

32Conditions of restraining order

(1)It is a condition of every restraining order that the person whose property is restrained under the order must preserve the property.

(2)The Supreme Court may impose the other conditions the court considers appropriate, including, but not limited to, the following—

(a)a condition about who is to have possession of the property;

(b)a condition of a kind mentioned in section 33 or 34.

33Condition about dealing with property by agreement

The Supreme Court may impose a condition authorising the commission or, if the application is made by a police officer, the commissioner of the police service to agree to—

(a)the disposal of the property restrained under the restraining order by its owner to enable the proceeds of the disposal to be applied to satisfy all or part of a debt payable under another order made under this Act; or

(b)the application of the property by its owner to satisfy all or part of a debt payable under another order made under this Act.

s 33 amd 2013 No. 21s 23

34Condition about particular payments out of restrained property

(1)The Supreme Court may impose a condition providing for all or any of the following to be paid out of the property of a particular person, or a stated part of the person’s property, restrained under the restraining order—

(a)the person’s reasonable living expenses and reasonable business expenses;

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

(c)a stated debt incurred in good faith by the person.

(2)Subsection (1) is the only provision of this chapter under which provision may be made for the payment of expenses or a debt mentioned in subsection (1).

(3)Also, subsection (1) applies only if the Supreme Court is satisfied—

(a)the person can not meet the expenses or debt out of property that is not restrained under the order and the person has no source of income to meet the expenses or debt; and

(b)the property from which the expenses or debt are to be paid is not illegally acquired property.

(4)Further, subsection (1) does not authorise the imposition of a condition providing for the payment of a person’s legal expenses that are payable because—

(a)the person is a party to a proceeding under this Act; or

(b)the person is a defendant in a criminal proceeding, including any proceeding on appeal against conviction or sentence.

s 34 amd 2013 No. 21s 24

35Restraining order may direct public trustee to take control of property

If the Supreme Court considers the circumstances require it, the court may, in a restraining order or a later order, direct the public trustee to take control of some or all of the property restrained under the order.

36Duration of restraining order

(1)A restraining order is in force for 28 days after it is made.

(2)Despite subsection (1), a restraining order continues in force after the end of the 28 days if—

(a)before the end of the 28 days, an application for any of the following is made but the application has not been decided—

(i)a forfeiture order for the restrained property;

(ii)a proceeds assessment order against the person whose property is restrained under the restraining order;

(iii)an unexplained wealth order against the person whose property is restrained under the restraining order; or

(b)there is an unsatisfied proceeds assessment order or unexplained wealth order in force against the person whose suspected serious crime related activities were the basis of the restraining order; or

(c)the order continues in force because of an order of the Supreme Court under section 54.

s 36 amd 2013 No. 21s 25

37Supreme Court may make other orders

(1)The Supreme Court may make the other orders in relation to a restraining order the court considers appropriate, including, but not limited to, orders mentioned in sections 38 and 38A.

(2)However, section 38(1)(f) is the only provision of this chapter under which provision may be made for the payment of legal expenses that are expenses payable because—

(a)the person is a party to a proceeding under this Act; or

(b)the person is a defendant in a criminal proceeding, including any proceeding on appeal against a conviction or sentence.

(3)The court may make an order under this section—

(a)when making the restraining order or, on application, at a later time; and

(b)whether or not it affects a person whose property is restrained under the restraining order.

(4)Any of the following may apply for an order, other than an investigation order, under this section—

(a)the State;

(b)a person whose property is restrained under the restraining order;

(c)if the restraining order directs the public trustee to take control of restrained property under the restraining order—the public trustee.

(5)Another person may apply for an order, other than an investigation order, under this section with the Supreme Court’s leave.

(6)An applicant under subsection (4) must give notice of the making of the application to each other person who may apply under subsection (4) for an order under this section.

(7)An applicant under subsection (5) must give notice of the making of the application to each person who may apply under subsection (4) for an order under this section.

(8)The State may apply for an investigation order.

(9)The State must give notice of an application under subsection (8)—

(a)to the person to whom the order is to be directed if the order is to be made under section 38A(1)(a), (b), or (c); or

(b)to the person whose property is to be seized if the order is made under section 38A(1)(d).

(10)Subsections (6), (7) and (9) do not apply to an application for an order under this section made in a proceeding on an application for a restraining order that is made without notice to any person to whom it relates.

(11)Also, subsection (9) does not apply to an application for an investigation order of which notice does not have to be given because of section 37A(2).

s 37 amd 2009 No. 2s 10

37AHearing of application

(1)The Supreme Court must not hear an application for an order under section 37 unless satisfied the person who is, or whose property is, the subject of the application has received reasonable notice of the application.

(2)Despite subsection (1), the court must consider an application for an investigation order without notice having been given if the DPP asks the court to do so.

(3)However, the Supreme Court may, at any time before finally deciding the application, direct the State to give notice of the application to a stated person or class of persons in the way, and within the time, the court considers appropriate.

(4)A person who is, or whose property is, the subject of the application, and anyone else who claims to have an interest in the property, may appear at the hearing of the application.

s 37A ins 2009 No. 2s 11

38Administration orders Supreme Court may make

(1)The court may make any of the following orders under section 37 (each an administration order)—

(a)an order varying the property restrained under the restraining order;

(b)an order imposing additional conditions on the restraining order or varying a condition of the order;

(c)an order about the performance of an undertaking given in relation to the restraining order for the payment of damages or costs;

(d)if the restraining order directs the public trustee to take control of property, an order—

(i)regulating the way the public trustee may perform functions under the restraining order; or

(ii)deciding any question about the property, including a question affecting the liabilities of the owner of the property or the functions of the public trustee;

(e)an order requiring a person whose property is restrained under the restraining order to do anything necessary or convenient to bring the property within the State;

(f)an order for the payment to Legal Aid, from property restrained under the restraining order, of expenses payable by the person whose property is restrained because—

(i)the person is a party to a proceeding under this Act; or

(ii)the person is a defendant in a criminal proceeding, including any proceeding on appeal against conviction or sentence.

(2)A person must not contravene an order mentioned in subsection (1)(e).

Maximum penalty—100 penalty units or 2 years imprisonment.

s 38 amd 2003 No. 55s 45

sub 2009 No. 2s 12

38AInvestigation orders Supreme Court may make

(1)Also, the court may make any of the following orders under section 37 (each an investigation order)—

(a)an order (examination order) requiring a person whose property is restrained under the restraining order or a stated person to attend for examination on oath before the court or a court officer about the following—

(i)the affairs of any person whose property is restrained under the restraining order;

(ii)the nature and location of any property of a person whose property is restrained under the restraining order;

(iii)the nature and location of any property restrained under the restraining order that the applicant for the order reasonably suspects is serious crime derived property;

(b)an order (also an examination order) requiring the spouse of a person whose property is restrained under the restraining order to attend for examination on oath before the court or a court officer about the spouse’s affairs, including the nature and location of property in which the spouse or the person has an interest;

(c)an order (property particulars order) directing any of the following to give to the commission within a stated time a sworn statement of particulars of, or of dealings with, any property (whether or not the restrained property) as the court considers appropriate—

(i)a person whose property is restrained under the restraining order;

(ii)a person whose property the restrained property was at any time before the restraining order was made;

(iii)if the person mentioned in subparagraph (i) or (ii) is or was a corporation—an executive officer of the corporation;

(d)an order (property seizure order) requiring or authorising a commission officer or a police officer to seize property restrained under the restraining order.

Note—

See sections 43 and 44 for the general effect of a property seizure order.

(2)An order mentioned in subsection (1)(d) may state the powers the commission officer or police officer may exercise for giving effect to the order.

(3)Subsection (4) applies if an examination order is made without notice of the application for the order being given to a person required to attend for examination.

(4)The examination must not be conducted less than 7 days after the day on which the examination order is made, unless the court considers it appropriate for the examination to be conducted at an earlier time.

s 38A prev s 38A ins 2003 No. 55s 46

om 2009 No. 2s 14

pres s 38A ins 2009 No. 2s 13

39Court officer’s power to conduct examinations

(1)This section applies if a court officer conducts an examination under an examination order.

(2)The court officer constitutes, and may exercise all the jurisdiction and powers of, the court.

(3)However, the court officer may not exercise any power of the court to punish for contempt.

s 39 sub 2009 No. 2s 15

39ATime and place of examination

The examination of a person must be conducted at the time and place stated in the examination order.

s 39A ins 2004 No. 43s 36

39BExamination to take place in private

(1)The examination must take place in private.

(2)The court or court officer may give directions about who may be present during the examination, or during a part of it.

(3)These people are entitled to be present at the examination—

(a)a lawyer of the person being examined; and

(b)an appropriate officer; and

(c)a commission officer; and

(d)a lawyer representing an appropriate officer or a commission officer; and

(e)any person who is entitled to be present because of a direction under subsection (2).

s 39B ins 2004 No. 43s 36

amd 2009 No. 2s 16

39CRole of the examinee’s lawyer

The lawyer of the person being examined may, at the times during the examination that the court or court officer decides—

(a)address the court or court officer about matters on which the person has been examined; and

(b)examine the person about matters on which the person has been examined.

s 39C ins 2004 No. 43s 36

amd 2009 No. 2s 17

39DRecording evidence

(1)The court or court officer must ensure that, if practicable, evidence given at an examination in Queensland is recorded under the Recording of Evidence Act 1962 or recorded in another way and authenticated by the court or court officer.

(1A)Subsection (1) applies despite the Recording of Evidence Act 1962, section 5.

Note—

The Recording of Evidence Act 1962, section 5, requires evidence given in a legal proceeding to be recorded under that Act, subject to any direction given by the court in which, or judicial person before whom, the legal proceeding is being taken.

(2)The court or court officer must authenticate and sign any deposition or other recording.

(3)If evidence given at an examination is recorded in a deposition, it must—

(a)contain, in question and answer form, the evidence of the person examined; and

(b)be transcribed and read over by or to the person in the court’s and court officer’s presence and in the presence of the parties who wish to attend; and

(c)be signed by the person, or, if the person refuses to sign the deposition, by the court or court officer for the person.

(4)The court or court officer may impose on the person being examined the conditions (if any) that the court or court officer reasonably considers necessary to prevent improper disclosure of the record.

s 39D ins 2004 No. 43s 36

amd 2009 No. 2s 18; 2013 No. 3s 61sch 2

40Privilege—examination order

(1)A person examined under an examination order is not excused from answering a question, or from producing a document or other thing, on the ground that—

(a)answering the question or producing the document may tend to incriminate the person or make the person liable to a forfeiture or penalty; or

(b)producing the document would be in breach of an obligation, whether imposed by an enactment or otherwise, of the person not to disclose the existence or contents of the document; or

(c)answering the question or producing the document would disclose information that is the subject of legal professional privilege.

(2)A statement or disclosure made by a person in answer to a question asked in an examination under an examination order, or a document or other thing produced in the examination, is not admissible against the person in any civil or criminal proceeding, other than—

(a)a proceeding about the false or misleading nature of the statement or disclosure; or

(b)a proceeding on an application under this Act; or

(c)a proceeding for the enforcement of a confiscation order; or

(d)for a document or other thing, a proceeding about a right or liability it confers or imposes.

41Offence to contravene examination order

A person who is required to attend an examination under an examination order under this part must not—

(a)fail to attend as required by the order, unless the person has a reasonable excuse; or

(b)fail to attend from day to day until the conclusion of the examination, unless the person has a reasonable excuse; or

(c)fail to take an oath for the purpose of the examination; or

(d)fail to answer a question that the person is directed to answer by the court or court officer; or

(e)make a statement in the examination that is false or misleading in a material particular.

Maximum penalty—100 penalty units or 2 years imprisonment.

s 41 amd 2009 No. 2s 19

41AUse and dissemination of examination information

(1)This section applies to a statement, disclosure, document or other thing mentioned in section 40(2) (examination information).

(2)The DPP or the commission may give the examination information to—

(a)a corresponding entity to help the entity to obtain other evidence or other information (derived evidence) that may be relevant to the enforcement of a corresponding law; or

(b)an entity of the State, another State or the Commonwealth that has a function of investigating or prosecuting offences to help the entity to obtain other evidence or other information (derived evidence) that may be relevant to the investigation or prosecution of an offence.

(3)The giving of examination information under subsection (2), its use to obtain derived evidence or the admissibility of the derived evidence in a proceeding, including a prosecution for an offence, is unaffected by—

(a)the fact that the examination information was obtained because of section 40 and subject to section 39B; or

(b)any duty of confidentiality owed to the person from whom the examination information was obtained; or

(c)the objects of this Act or the particular purpose for which the examination information was obtained.

(4)In this section—

entity of the State, another State or the Commonwealth includes a law enforcement agency established under a law of the State, another State or the Commonwealth.

s 41A ins 2009 No. 2s 20

42Privilege—property particulars order

(1)A person directed under a property particulars order to give a statement to the commission or the public trustee is not excused from giving the statement or including particulars in the statement on the ground that the statement or particulars may tend to incriminate the person or make the person liable to a forfeiture or penalty.

(2)If a person gives a statement to the commission or the public trustee under a property particulars order, the statement is not admissible against the person in any criminal proceeding other than a proceeding about the false or misleading nature of the statement.

42AOffence to contravene property particulars order

A person directed under a property particulars order to give a statement to the commission within a stated period of time—

(a)must comply with the direction unless the person has a reasonable excuse; and

(b)must not make a statement that is false or misleading in a material particular.

Maximum penalty—100 penalty units or 2 years imprisonment.

s 42A ins 2009 No. 2s 21

43If property seizure order directed to commission officer

(1)This section applies if the Supreme Court makes a property seizure order that is directed to a commission officer.

(2)The order—

(a)is taken to be a search warrant issued by a Supreme Court judge under the Crime and Corruption Act 2001 in relation to confiscation related evidence as defined under that Act; and

(b)is taken to authorise a commission officer to exercise search warrant powers under the Crime and Corruption Act 2001, section 92, including search warrant powers mentioned in section 92(2) and (3) or stated in the order, to the extent necessary for giving effect to the order.

(3)Property seized under the order is taken to have been seized under the Crime and Corruption Act 2001.

(4)The Crime and Corruption Act 2001, section 93 applies to the order as if the order were a search warrant.

(5)It is sufficient compliance with the Crime and Corruption Act 2001, section 93(1) for the commission officer to give the occupier of the place a copy of the order or, if the occupier of the place is not present, to leave the copy in a conspicuous place.

(6)The Crime and Corruption Act 2001, sections 113 and 114 do not apply to property seized under the order.

s 43 amd 2014 No. 21s 94(2)sch 2

44If property seizure order directed to police officer

(1)This section applies if the Supreme Court makes a property seizure order that is directed to a police officer.

(2)The order—

(a)is taken to be a search warrant issued by a Supreme Court judge under the Police Powers and Responsibilities Act 2000 in relation to confiscation related evidence as defined under that Act; and

(b)is taken to authorise a police officer to exercise search warrant powers under the Police Powers and Responsibilities Act 2000, section 157, including search warrant powers mentioned in section 157(2) and (3), to the extent necessary for giving effect to the order.

(3)Property seized under the order is taken to have been seized under the Police Powers and Responsibilities Act 2000.

(4)The Police Powers and Responsibilities Act 2000, section 158 applies to the order as if it were a search warrant.

(5)It is sufficient compliance with the Police Powers and Responsibilities Act 2000, section 158(1) for the police officer to give the occupier of the place a copy of the order or, if the occupier of the place is not present, to leave the copy in a conspicuous place.

Note—

The Police Powers and Responsibilities Act 2000 provisions about applications for the return of things in the possession of the police service generally do not apply to things seized under a property seizure order.

s 44 amd 2000 No. 5s 810sch 4 (amd 2006 No. 26 ss 84, 86)

45Notice of restraining order and other orders

(1)This section applies if the Supreme Court—

(a)makes a restraining order; or

(b)makes another order under division 3 in relation to a restraining order.

(2)As soon as practicable after the order is made, the commission must give each person whose property is restrained under the order and anyone else who is affected by the order a copy of the order.

(2A)However, under subsection (2) the commission is not required to give a person whose property is restrained under a restraining order a copy of, or notice of, an investigation order made under section 38A(1)(a), (b) or (c) directed to another person.

(3)If the order directs the public trustee to take control of property, the commission must give the public trustee a copy of the order.

(4)However, if the application was made for the State by the commissioner of the police service, the commissioner of the police service—

(a)must give the commission a copy of the order; and

(b)must give the notice required to be given under subsection (2) or (3).

(5)A restraining order, or another order under division 3, does not stop having effect only because a person required to be served under subsection (2) has not been served with a copy of the order.

s 45 amd 2009 No. 2s 22

46Supreme Court may order sale of restrained property

(1)This section applies to restrained property under a restraining order only if the State applies to the Supreme Court for a forfeiture order for the property and the application has not been decided.

(2)The State may, when applying for the forfeiture order or at a later time, apply to the Supreme Court for an order directing the public trustee to sell all or part of the restrained property (application property).

(3)The State must give notice of the application to each person who has an interest in the application property.

(4)The Supreme Court may make the order if the court is satisfied, on evidence of the public trustee or otherwise—

(a)the application property may deteriorate or lose value before the forfeiture order application is decided; or

(b)the cost of controlling the application property would be more than the value of the property if it were disposed of after a forfeiture order was made.

(5)The proceeds of a sale under an order under this section are taken to be restrained under the restraining order applying to the application property.

47Supreme Court may exclude prescribed respondent’s property from restraining order

(1)The prescribed respondent under the restraining order may apply to the Supreme Court to amend the order to exclude particular property of the prescribed respondent from the order.

(2)The application must be made before the State applies for a forfeiture order to be made.

Note—

After the State applies for a forfeiture order, an application by a prescribed respondent may be made under section 65 or 66.

(3)The prescribed respondent must give a written notice of the making of the application, the grounds for the application and the facts relied on to the State and anyone else who has an interest in the property.

(3A)The grounds for the application and the facts relied on must be stated fully in the notice.

(4)The State must be a party to the application.

(5)Anyone else who is given notice of the application may appear at the hearing of the application.

(6)If the State proposes to oppose the application, the State must give the applicant notice of intention to oppose the application.

(7)The State must give the applicant notice of the grounds for opposing the application.

(8)However—

(a)the State is not required to give the notice; and

(b)the application may not be heard;

until the DPP has had a reasonable opportunity to examine the applicant or a relevant person under an examination order, whether or not an examination order has already been made.

(9)In this section—

relevant person means a person other than the applicant who, on examination under an examination order, may be able to give evidence relevant to the application.

s 47 amd 2009 No. 2s 23

48When Supreme Court may exclude prescribed respondent’s property

(1)The Supreme Court may exclude the prescribed respondent’s property from the order if—

(a)it is satisfied it is more probable than not that the property to which the application relates is not illegally acquired property; and

(b)the property is unlikely to be required to satisfy a proceeds assessment order or unexplained wealth order.

(2)Also, the Supreme Court may exclude the prescribed respondent’s property from the order if it is satisfied it is in the public interest to amend the order in the particular circumstances.

(3)The Supreme Court may require the prescribed respondent to give security satisfactory to the court to meet any liability that may be imposed on the prescribed respondent under this Act.

s 48 amd 2003 No. 55s 46A; 2013 No. 21s 26

49Supreme Court may exclude other property from restraining order

(1)If the Supreme Court makes a restraining order, a person other than the prescribed respondent (the applicant) whose property is restrained under the order may apply to the court to amend the order to exclude the applicant’s property from the order.

(2)The applicant must give a written notice of the making of the application, the grounds for the application and the facts relied on to the State and anyone else who has an interest in the property.

(2A)The grounds for the application and the facts relied on must be stated fully in the notice.

(3)The State must be a party to the application.

(4)Anyone else who is given notice of the application may appear at the hearing of the application.

(5)If the State proposes to oppose the application, the State must give the applicant notice of intention to oppose the application.

(6)The State must give the applicant notice of the grounds for opposing the application.

(7)However—

(a)the State is not required to give the notice; and

(b)the application may not be heard;

until the DPP has had a reasonable opportunity to examine the applicant or a relevant person under an examination order, whether or not an examination order has already been made.

(8)In this section—

relevant person means a person other than the applicant who, on examination under an examination order, may be able to give evidence relevant to the application.

s 49 amd 2009 No. 2s 24

50When Supreme Court may exclude applicant’s property

(1)The Supreme Court may exclude the applicant’s property from the order if it is satisfied the applicant acquired the property—

(a)in good faith and for sufficient consideration; and

(b)without knowing, and in circumstances not likely to arouse a reasonable suspicion, that the property was illegally acquired property.

(2)The Supreme Court may make the order only to the extent to which the interest in the property concerned was not, when it first became illegally acquired property, acquired using the proceeds of an illegal activity.

(3)In addition, the Supreme Court may exclude the applicant’s property from the order if it is satisfied it is in the public interest to amend the order in the particular circumstances.

(4)The Supreme Court may require the applicant to give the undertakings about the applicant’s property the court considers appropriate.

s 50 amd 2003 No. 55s 46B

ch 2 pt 3 div 7A hdg ins 2003 No. 55s 46C

50AApplication to revoke restraining order

(1)A person whose property is the subject of a restraining order and who was not given notice of the application for the restraining order may apply to the Supreme Court to revoke the order.

(2)The application must be made within 28 days or, with the approval of the court, the further period, of not more than 3 months, after the person is notified of the making of the restraining order.

(3)The applicant must give to the State written notice of the making of the application and the grounds for the application.

(4)The restraining order remains in force until the court revokes the order or the order otherwise stops having effect.

(5)The State may present additional material to the court relating to the application to revoke the restraining order.

(6)After considering the application, the court may revoke the restraining order if satisfied, on the facts before the court, there would be no basis for making a restraining order in relation to the property.

s 50A ins 2003 No. 55s 46C

50BNotice of revocation of restraining order

(1)On the revocation of a restraining order under section 50A, the State must give notice of the revocation to—

(a)each person whose property was restrained under the order, if known; and

(b)anyone else who was affected by the order.

(2)Subsection (1) does not require the State to notify the applicant for the revocation of the restraining order of the revocation of the order.

s 50B ins 2003 No. 55s 46C

51Recording of restraining order

(1)This section applies if a restraining order applies to property of a particular kind and a law, whether or not a law of the State, provides for the registration of title to, an interest in, or a charge over, property of that kind.

(2)On the application of the commission or the commissioner of the police service, the authority responsible for administering the law must record the particulars of the relevant restraining order in the register kept under the law.

(3)Subsection (2) applies even though a relevant document of title is not produced to a registrar or any other person.

(4)Unless the contrary is proved, a person who later deals with property for which particulars are recorded under subsection (2) is taken to have had notice of the relevant restraining order.

(5)If the Land Title Act 1994 applies to the property, the commission or the commissioner of the police service may lodge, and the registrar of titles must register, a caveat over the property under that Act.

(6)As soon as practicable after the relevant restraining order stops having effect in relation to the property—

(a)the commission or the commissioner of the police service must apply for cancellation of the record of the order; and

(b)the authority responsible for administering the relevant law must take the steps necessary to cancel the record.

(7)Also, if the commission or the commissioner of the police service lodged a caveat over the property under subsection (5), as soon as practicable after the relevant restraining order stops having effect in relation to the property, the commission or the commissioner of the police service must withdraw the caveat.

52Contravention of restraining order

(1)A person who does, or attempts to do, an act or makes an omission in relation to restrained property in contravention of a restraining order commits a crime.

Maximum penalty—

(a)for a financial institution—2500 penalty units or the value of the restrained property, whichever is the higher amount; or

(b)otherwise—

(i)1000 penalty units or the value of the restrained property, whichever is the higher amount; or

(ii)7 years imprisonment.

(2)It is a defence to a charge of an offence against subsection (1) for the person to prove that the person had no notice the property was restrained under a restraining order and no reason to suspect it was.

(3)However, the defence under subsection (2) is not available to the extent the restrained property is—

(a)a motor vehicle, boat or outboard motor the subject of a restraining order registered under the Personal Property Securities Act 2009 (Cwlth); or

(b)land over which a caveat in relation to the restraining order is registered under the Land Title Act 1994.

Note—

See section 51(5) for the obligation of the registrar of titles to register the caveat.

(4)Subsection (1) does not prevent the prosecution and punishment of a person who does, or attempts to do, an act or makes an omission mentioned in that subsection for contempt of court or another offence under this Act or another Act.

(5)A dealing with property in contravention of subsection (1) is void unless the dealing was in favour of a person who—

(a)did not know, and could not reasonably be expected to have known, that the property was restrained under a restraining order; and

(b)acted in good faith; and

(c)provided sufficient consideration for the dealing.

(6)Subsection (5) applies whether or not any person is convicted of an offence in relation to the restraining order.

s 52 amd 2010 No. 44 s 170; 2013 No. 21 s 27

sub 2017 No. 6 s 14

53Restraining order does not prevent other action under this Act

A restraining order does not prevent the enforcement of any other order made under this Act against restrained property under a restraining order.

54Effect of dismissal of particular applications on restraining order

(1)This section applies if, while a restraining order is in force over property, the Supreme Court dismisses an application for—

(a)a forfeiture order for the property; or

(b)a proceeds assessment order against the person whose property is restrained under the restraining order; or

(c)an unexplained wealth order against the person whose property is restrained under the restraining order.

(2)The Supreme Court may—

(a)if the court considers it appropriate, make an order extending the operation of the restraining order for a stated period or in stated circumstances; or

(b)make another order the court considers appropriate about the operation of the restraining order.

(3)An order under subsection (2) may be made to take effect immediately, at a stated time, or when a stated event happens.

s 54 amd 2013 No. 21s 28

55Authority under restraining order

A restraining order is sufficient authority for a person to whom the order is directed to take all steps necessary or desirable to give effect to the order.

56Application for forfeiture order

(1)The State may apply to the Supreme Court for an order (forfeiture order) forfeiting to the State particular property restrained under a restraining order.

(2)The application may include particulars of any encumbrance over the restrained property that an appropriate officer considers an encumbrancee took in good faith, for valuable consideration, and in the ordinary course of the encumbrancee’s business.

57Notice of application

(1)The commission or, if the application is made for the State by a police officer, the commissioner of the police service must give written notice of the application to each person whose property is restrained under the restraining order and anyone else the commission or the commissioner of the police service considers has an interest in the restrained property.

(2)A person given notice under subsection (1) may appear at the hearing of the application.

(3)Anyone else who claims any of the property may also appear at the hearing of the application.

(4)The absence of a person given notice under subsection (1) does not prevent the court from making a forfeiture order.

58Making forfeiture order

(1)The Supreme Court must make a forfeiture order if the court finds it is more probable than not that—

(a)for property restrained because of an application relating to property mentioned in section 28(3)(a) or (b)—the prescribed respondent mentioned in that application engaged during the limitation period in a serious crime related activity; or

(b)for property restrained because of an application relating to property mentioned in section 28(3)(c)—the property is serious crime derived property because of a serious crime related activity that happened during the limitation period.

(2)Subsection (1)(b) applies whether or not the person who engaged in the serious crime related activity because of which the property became serious crime derived property has been identified.

(3)However, for property mentioned in subsection (1)(b), the court must also be satisfied the commission or, if the application is made for the State by a police officer, the commissioner of the police service, has taken reasonable steps to identify and notify anyone with an interest in the property.

(4)Also, the court may refuse to make the order if the court is satisfied it is not in the public interest to make the order.

(5)A finding of the court under subsection (1)—

(a)need not be based on a finding about the commission of a particular offence; and

(b)may be based on a finding that some offence that is a serious crime related activity was committed.

(6)Also, the raising of a doubt whether a person engaged in a serious crime related activity is not of itself enough to avoid a finding on which a forfeiture order may be made.

(7)The forfeiture order must state the property to which it applies.

Note—

Property may be excluded from the effect of a forfeiture order if it has been excluded under section 47, 49 or 68.

(8)The court may make the ancillary orders the court considers appropriate when it makes a forfeiture order or at a later time.

Example—

ancillary orders for facilitating the transfer to the State of property forfeited to the State

(9)In this section—

limitation period—

(a)means the period of 6 years before the day the application for the order is made; and

(b)includes periods before and after the commencement of this section.

s 58 amd 2004 No. 43s 3 sch

58AForfeiture order relating to external serious crime related activity

(1)An application for a forfeiture order that relates to property of a prescribed respondent suspected of having engaged in 1 or more external serious crime related activities may be made only if the prescribed respondent lives in Queensland or the property is situated in Queensland.

(2)The Supreme Court may not make the forfeiture order unless it is satisfied that no action has been taken under a law of the Commonwealth or any place outside Queensland, including outside Australia, against the property of the prescribed respondent that is the subject of the application as a result of the external serious crime related activity.

(3)For subsection (2), an affidavit of an appropriate officer that includes a statement that the officer has made due enquiry and is satisfied that no action has been taken under a law of the Commonwealth or any place outside Queensland, including outside Australia, against property of the prescribed respondent that is the subject of the application as a result of the external serious crime related activity is proof, in the absence of evidence to the contrary, of the matters contained in the affidavit.

s 58A ins 2009 No. 2s 25

amd 2013 No. 21s 29

59Effect of forfeiture order

(1)On the making of a forfeiture order the property the subject of the order—

(a)is forfeited to the State; and

(b)vests absolutely in the State.

(2)Subsection (1)(b) is subject to the provisions of this Act under which the Supreme Court may make orders about the property vested or to be vested in the State.

60Dealing with forfeited property prohibited

(1)A person who does, or attempts to do, an act or makes an omission in relation to property that is the subject of a forfeiture order that directly or indirectly defeats the operation of the order commits a crime.

Maximum penalty—

(a)for a financial institution—2500 penalty units or the value of the forfeited property, whichever is the higher amount; or

(b)otherwise—

(i)1000 penalty units or the value of the forfeited property, whichever is the higher amount; or

(ii)7 years imprisonment.

(2)It is a defence to a charge of an offence against subsection (1) for the person to prove that the person had no notice the property was the subject of a forfeiture order and no reason to suspect it was.

(3)However, the defence under subsection (2) is not available to the extent the property is—

(a)a motor vehicle, boat or outboard motor the subject of a forfeiture order registered under the Personal Property Securities Act 2009 (Cwlth); or

(b)land over which a caveat in relation to the forfeiture order is registered under the Land Title Act 1994.

(4)Subsection (1) does not prevent the prosecution and punishment of a person who does, or attempts to do, an act or makes an omission mentioned in that subsection for contempt of court or another offence under this Act or another Act.

(5)A dealing with property in contravention of subsection (1) is void unless the dealing was in favour of a person who—

(a)did not know, and could not reasonably be expected to have known, that the property was forfeited under a forfeiture order; and

(b)acted in good faith; and

(c)provided sufficient consideration for the dealing.

(6)Subsection (5) applies whether or not any person is convicted of an offence in relation to the forfeiture order.

s 60 sub 2017 No. 6 s 15

61Effect of quashing of conviction on forfeiture order

The quashing of a conviction for a serious crime related activity does not affect the validity of a forfeiture order made before or after the conviction was quashed and based on the serious crime related activity.

62Relief from hardship for dependants

(1)If the Supreme Court is satisfied the operation of a forfeiture order will cause hardship to a dependant of the person who will forfeit property under the order, the court may—

(a)order the State to pay to the dependant out of the proceeds of the sale of the property the amount the court considers necessary to prevent hardship to the dependant; and

(b)if the dependant is under 18 years old, make the ancillary orders the court considers necessary for ensuring the proper application of an amount to be paid to the dependant.

(2)The court must not make an order under subsection (1) in favour of an adult dependant of a person whose serious crime related activity was the basis for the forfeiture order concerned unless the court is satisfied the dependant had no knowledge of any serious crime related activities of the person.

s 62 amd 2013 No. 21s 30

63Forfeiture order may provide for discharge of encumbrance

(1)If—

(a)the Supreme Court is satisfied an encumbrancee took an encumbrance over property to be forfeited under a forfeiture order in good faith, for valuable consideration, and in the ordinary course of the encumbrancee’s business; and

(b)the State gives an undertaking to apply the proceeds of disposing of the forfeited property towards discharging the encumbrance;

the court may make the orders about the encumbrance the court considers appropriate.

(2)The commission or, if the application is made by a police officer, the commissioner of the police service may give the undertaking for the State.

64Order for release of property from forfeiture order

(1)The Supreme Court may order (release order) that a stated interest in property of a stated person that has been forfeited under a forfeiture order may be released from the forfeiture order on payment to the State of the amount the court decides is the value of the interest.

(2)The order must state the nature, extent and value, when the order is made, of the person’s interest in the forfeited property.

(3)The court may make the order only if it is satisfied—

(a)the interest is still vested in the State; and

(b)it would not be against the public interest for the interest to be transferred to the person; and

(c)there is no other reason the interest should not be transferred to the person.

65Exclusion of property from forfeiture order application

(1)This section applies if an application for a forfeiture order has been made but the application has not been decided.

(2)A person, including a prescribed respondent, who claims an interest in property to which the application relates may apply to the Supreme Court for an exclusion order.

(3)The applicant must give a written notice of the making of the application, the grounds for the application and the facts relied on to the State and anyone else who has an interest in the property.

(3A)The grounds for the application and the facts relied on must be stated fully in the notice.

(4)The State must be a party to the application.

(5)Anyone else who is given notice of the application may appear at the hearing of the application.

(6)If the State proposes to oppose the application, the State must give the applicant notice of intention to oppose the application.

(7)The State must give the applicant notice of the grounds for opposing the application.

(8)However—

(a)the State is not required to give the notice; and

(b)the application may not be heard;

until the DPP has had a reasonable opportunity to examine the applicant or a relevant person under an examination order, whether or not an examination order has already been made.

(9)In this section—

relevant person means a person other than the applicant who, on examination under an examination order, may be able to give evidence relevant to the application for the exclusion order.

s 65 amd 2009 No. 2s 26

66Exclusion of property from forfeiture order

(1)A person, including a prescribed respondent, who claims an interest in property that is forfeited under a forfeiture order may apply to the Supreme Court for an exclusion order.

(2)Unless the court gives leave under section 67—

(a)the application must be made within 6 months after the forfeiture order was made; and

(b)the following persons can not apply for an exclusion order—

(i)a person who was given notice of the application for the forfeiture order;

(ii)a person who appeared at the hearing of the application for the forfeiture order.

(3)For each application made under this section, including an application for leave, the applicant must give a written notice of the making of the application, the grounds for the application and the facts relied on to the State and anyone else who has an interest in the property.

(3A)The grounds for the application and the facts relied on must be stated fully in the notice.

(4)The State must be a party to the application.

(5)Anyone else who is given notice of the application may appear at the hearing of the application.

(6)If the State proposes to oppose the application, the State must give the applicant notice of intention to oppose the application.

(7)The State must give the applicant notice of the grounds for opposing the application.

(8)However—

(a)the State is not required to give the notice; and

(b)the application may not be heard;

until the DPP has had a reasonable opportunity to examine the applicant or a relevant person under an examination order, whether or not an examination order has already been made.

(9)In this section—

relevant person means a person other than the applicant who, on examination under an examination order, may be able to give evidence relevant to the application for the exclusion order.

s 66 amd 2009 No. 2s 27

67When Supreme Court may give leave for s 66

(1)The Supreme Court may give leave to apply for an exclusion order after the end of the 6 months mentioned in section 66(2)(a) if it is satisfied the delay in applying was not because of the applicant’s neglect.

(2)Also, the Supreme Court may give a person mentioned in section 66(2)(b) leave to apply for an exclusion order only if it considers there are special grounds, including, for example—

(a)for a good reason, the person did not attend the hearing of the application for the forfeiture order even though the person had notice of it; or

(b)particular evidence proposed to be presented by the person in the application was not available to the person when the application for the forfeiture order was heard.

68Making of exclusion order

(1)The Supreme Court, on an application under section 65 or 66, may make an exclusion order.

(2)The Supreme Court must, and may only, make an exclusion order if it is satisfied—

(a)the applicant has or, apart from the forfeiture, would have, an interest in the property; and

(b)it is more probable than not that the property to which the application relates is not illegally acquired property.

s 68 amd 2003 No. 77s 48

69What is an exclusion order

(1)An exclusion order is an order that—

(a)states the nature, extent and, if necessary for the order, the value, when the order is made, of the applicant’s interest in the property; and

(b)if the application for the forfeiture order has not been decided, excludes the applicant’s property from the application for the forfeiture order; and

(c)if a forfeiture order has been made for the property, and the property is still vested in the State, directs the State to transfer the property to the applicant; and

(d)if a forfeiture order has been made for the property and the property is no longer vested in the State, directs the State to pay to the applicant the value of the applicant’s property.

(2)However, if the applicant is the prescribed respondent and an application has been made for a proceeds assessment order or unexplained wealth order against the prescribed respondent, subsection (1)(b) applies only if the court is satisfied the property is unlikely to be required to satisfy any proceeds assessment order or unexplained wealth order the court may make against the person.

s 69 sub 2003 No. 77s 49

amd 2013 No. 21s 31

70Effect of exclusion order

On the making of an exclusion order excluding an interest in property from an application for a forfeiture order, the restraining order applying to the restrained property stops having effect in relation to the excluded interest.

71Exclusion of value of innocent interest from forfeiture order

(1)A person who has an interest in particular property to which a forfeiture order relates may apply to the Supreme Court for an innocent interest exclusion order.

(2)Unless the court gives leave under section 72—

(a)the application must be made within 6 months after the forfeiture order was made; and

(b)the following persons can not apply for an innocent interest exclusion order—

(i)a person who was given notice of the application for the forfeiture order;

(ii)a person who appeared at the hearing of the application for the forfeiture order.

(3)For each application made under this section, including an application for leave, the applicant must give a written notice of the making of the application, the grounds for the application and the facts relied on to the State and anyone else who has an interest in the property.

(3A)The grounds for the application and the facts relied on must be stated fully in the notice.

(4)The State must be a party to the application.

(5)Anyone else who is given notice of the application may appear at the hearing of the application.

(6)If the State intends to oppose the application, the State must give the applicant—

(a)notice of intention to oppose the application; and

(b)the grounds for opposing the application.

s 71 amd 2009 No. 2s 28

72When Supreme Court may give leave for s 71

(1)The Supreme Court may give leave to apply for an innocent interest exclusion order after the end of the 6 months mentioned in section 71(2)(a) if it is satisfied the delay in applying was not because of the applicant’s neglect.

(2)Also, the Supreme Court may give a person mentioned in section 71(2)(b) leave to apply for an innocent interest order only if it is satisfied there are special grounds, including, for example—

(a)for a good reason, the person did not attend the hearing of the application for the forfeiture order even though the person had notice of it; or

(b)particular evidence proposed to be presented by the person in the application was not available to the person when the application for the forfeiture order was heard.

73Making of innocent interest exclusion order

(1)The Supreme Court, on an application under section 71, may make an innocent interest exclusion order.

(2)The Supreme Court must, and may only, make an innocent interest exclusion order if the applicant proves it is more probable than not that a stated proportion of the value of the interest in property forfeited under the forfeiture order is not attributable to the proceeds of an illegal activity.

(3)The Supreme Court may make the order only to the extent to which the interest in the property concerned was not, when it first became illegally acquired property, acquired using the proceeds of an illegal activity.

s 73 amd 2003 No. 77s 50

74What is an innocent interest exclusion order

An innocent interests exclusion order is an order that—

(a)states the nature, extent and, if necessary for the order, the value, when the order is made, of the interest mentioned in section 73(2); and

(b)directs the State to pay to the applicant the value of the interest.

s 74 sub 2003 No. 77s 51

75Effect of payment under release order

(1)On the payment to the State of the amount stated in a release order as the value of an interest in forfeited property, while the interest is still vested in the State, the forfeiture order ceases to apply to the interest.

(2)As soon as practicable after the amount is paid, the Attorney-General must arrange for the interest to be transferred to the person in whom it was vested immediately before the property was forfeited to the State.

(3)The Attorney-General may do or authorise the doing of anything necessary or convenient to be done for the transfer.

76Buying out other interests under court order

(1)This section applies if—

(a)property that is forfeited to the State under a forfeiture order is still vested in the State; and

(b)the property or an interest in the property is required to be transferred to a person (the buyer) under an exclusion order or an innocent interest order or under section 75; and

(c)the buyer’s interest in the property, immediately before the forfeiture, was not the only interest in the property.

(2)If the buyer intends to buy the other interests in the property, the buyer must give written notice to any other person who had an interest in the property immediately before the forfeiture stating—

(a)the buyer intends to buy the other interests from the State; and

(b)within 21 days after receiving the notice, the person may give the Attorney-General a written objection to the sale of the person’s interest to the buyer.

(3)If—

(a)the person given the notice does not give a written objection to the buying of the interest to the Attorney-General within the 21 days; and

(b)the buyer pays to the State an amount equal to the value of the interest;

the Attorney-General must arrange for the interest to be transferred to the buyer.

(4)The Attorney-General may do, or authorise the doing of, anything necessary or convenient to be done for the transfer.

77Application for proceeds assessment order

(1)The State may apply to the Supreme Court for an order (proceeds assessment order) requiring a person to pay to the State the value of the proceeds derived from the person’s illegal activity that took place within 6 years before the day the application for the order is made.

(2)The State must give notice of the application to—

(a)the person against whom the order is sought; and

(b)anyone else who the commission, or if the application is made for the State by a police officer, the commissioner of the police service reasonably suspects may be affected by the order.

(3)A person given notice under subsection (2) may appear at the hearing of the application.

(4)The absence of a person required to be given notice of the application does not prevent the Supreme Court from making a proceeds assessment order.

(5)The 6 years mentioned in subsection (1) includes periods before and after the commencement of this section.

s 77 amd 2013 No. 21s 32

78Making of proceeds assessment order

(1)The Supreme Court must make a proceeds assessment order against a person if the court finds it is more probable than not that, at any time within the 6 years before the application was made, the person engaged in a serious crime related activity (a finding of serious crime related activity).

(2)However, the court may refuse to make the order if the court is satisfied it is not in the public interest to make the order.

(3)A finding of the court under subsection (1)—

(a)need not be based on a finding about the commission of a particular offence; and

(b)may be based on a finding that some offence that is a serious crime related activity was committed.

(4)The court may make the ancillary orders the court considers appropriate when it makes the proceeds assessment order or at a later time.

(5)The Supreme Court may not make a proceeds assessment order on an application that relates wholly to external serious crime related activity, unless it is satisfied that no action has been taken under a law of the Commonwealth or any other place outside Queensland, including outside Australia, in relation to the proceeds of the external serious crime related activity.

(6)For subsection (5), an affidavit by an appropriate officer that includes a statement that the officer has made due enquiry and is satisfied that no action has been taken under a law of the Commonwealth or any place outside Queensland, including outside Australia, against any property in relation to the proceeds of the external serious crime related activity is proof, in the absence of evidence to the contrary, of the matters contained in the affidavit.

(7)The court may make a pecuniary penalty order and a proceeds assessment order in relation to the same serious crime related activity.

(8)However, the court must take the amount of a pecuniary penalty order into account when making a later proceeds assessment order in relation to the same serious crime related activity.

s 78 amd 2009 No. 2s 29

79Amount must be stated in proceeds assessment order

(1)A proceeds assessment order must state, as the amount required to be paid to the State, the value of the proceeds derived from the person’s illegal activity.

(2)The value of the proceeds must be assessed under division 2.

(3)However, the Supreme Court may, if it considers it appropriate, deduct from the value of the proceeds the value of any property forfeited under a forfeiture order made in relation to a person’s illegal activities or under a serious drug offender confiscation order.

(4)In assessing the value of the proceeds, the Supreme Court is not limited to assessing the value of the serious crime related activity on which the application is based but must assess the value of other illegal activities of the person during the period to which the proceeds assessment order application relates.

s 79 amd 2013 No. 21s 33

80Proceeds assessment order increase if forfeiture order discharged

(1)This section applies if—

(a)the Supreme Court makes a proceeds assessment order; and

(b)in deciding the value of the proceeds derived from a person’s illegal activities, the court takes into account the value of property forfeited under a forfeiture order or serious drug offender confiscation order; and

(c)after the proceeds assessment order is made—

(i)the forfeiture ends because of an appeal; or

(ii)an exclusion order or an innocent interest exclusion order is made in relation to any property forfeited under the forfeiture order.

(2)The State may apply to the Supreme Court for a variation of the proceeds assessment order to increase the amount payable under the order.

(3)If the Supreme Court considers an increase appropriate, it may vary the amount payable under the proceeds assessment order.

s 80 amd 2009 No. 2s 30; 2013 No. 21s 34

80ANotice of proceeds assessment order

(1)Within 28 days after a proceeds assessment order is made, the commission or, if the application for the order was made for the State by a police officer, the commissioner of the police service must give the following persons the documents mentioned in subsection (2)—

(a)all known dependants of the person against whom the order is made;

(b)anyone else the commission or the commissioner of the police service reasonably suspects may be affected by the order.

(2)For subsection (1), the documents are—

(a)a copy of the proceeds assessment order; and

(b)a written notice stating that a dependant of the person against whom the order is made may apply to the Supreme Court, within 3 months after the day the order is made, for a hardship order under section 89A.

(3)If required by the court, the commission or the commissioner of the police service must also give notice of the making of the order to the persons the court considers appropriate, in the way and within the time the court considers appropriate.

s 80A ins 2013 No. 21s 35

81Application of div 2

(1)This division applies to—

(a)property in Queensland or elsewhere; and

(b)proceeds of an illegal activity, whether acquired in Queensland or elsewhere.

(2)Also, this division applies for assessing the value of the proceeds derived from an illegal activity of a person (relevant person).

s 81 amd 2003 No. 77s 52

82Matters to which Supreme Court must have regard

(1)The Supreme Court must have regard to the evidence before it about the following—

(a)the value of cash and other property that came into the possession or under the control of the relevant person or someone else at the request, or by the direction, of the relevant person, because of the illegal activity;

(b)the value of any benefit provided for the relevant person or someone else at the request, or by the direction, of the relevant person, because of the illegal activity;

(c)if the illegal activity involved a dangerous drug or controlled substance (the illegal drug)—

(i)the market value, when the illegal activity happened, of a dangerous drug or controlled substance similar, or substantially similar, to the illegal drug; and

(ii)the amount that was, or the range of amounts that were, ordinarily paid for an act similar, or substantially similar, to the illegal activity;

(d)the value of the relevant person’s property before, during and after the illegal activity;

(e)the relevant person’s income and expenditure before, during and after the illegal activity.

(2)The court—

(a)may treat as the value of the proceeds the value the proceeds would have had if derived when the valuation is being made; and

(b)without limiting paragraph (a), may have regard to any decline in the purchasing power of money between the time the proceeds were derived and the time the valuation is being made.

83How particular amounts may be treated

(1)This section applies if the court makes a finding of serious crime related activity in relation to a person under section 78(1) and—

(a)evidence is given that the value of the relevant person’s property at the end of the period of 6 years mentioned in section 78(1) was more than the value of the relevant person’s property at the start of the period; or

(b)evidence is given of the amount of the relevant person’s expenditure within the 6 years before the day the application for the order was made.

(2)If subsection (1)(a) applies, the court must treat the difference as proceeds derived by the relevant person from illegal activity, other than to the extent the court is satisfied the reason for the difference was not related to illegal activity.

(3)If subsection (1)(b) applies, the court must treat the amount as proceeds derived by the relevant person from illegal activity, other than to the extent the court is satisfied the expenditure was funded from income, or amounts from other sources, not related to illegal activity.

(4)The court must not take expenditure into account under subsection (3) to the extent the court is satisfied it resulted in the acquisition of property the value of which is taken into account under subsection (2).

s 83 amd 2009 No. 2s 31; 2013 No. 21s 36

84Particular amounts not to be deducted

For this division, any expenses or outgoings incurred by the relevant person in relation to the illegal activity must be disregarded.

Example—

For deciding the value of the proceeds derived by the relevant person from an illegal activity involving the sale of dangerous drugs the person’s expenses paid in acquiring the drugs must be disregarded.

85Evidence by prescribed officer

(1)Despite any rule of law or practice about hearsay evidence, the court may, for this division, receive evidence of the opinion of a prescribed officer who is experienced in the investigation of illegal activities involving dangerous drugs about—

(a)the market value at a particular time of a particular kind of dangerous drug or controlled substance; or

(b)the amount, or range of amounts, ordinarily paid at a particular time for the doing of anything in relation to a particular kind of dangerous drug or controlled substance.

(2)In this section—

prescribed officer means—

(a)a police officer; or

(b)a member of the Australian Federal Police; or

(c)an officer of customs within the meaning of the Customs Act 1901 (Cwlth); or

(d)an authorised commission officer.

86Proceeds assessment order amount is debt payable to State

(1)The amount a person is ordered to pay to the State under a proceeds assessment order is a debt payable by the person to the State.

(2)The proceeds assessment order may be enforced as if it were a money order made by the Supreme Court in a civil proceeding taken by the State against the person for the recovery of the amount payable under the proceeds assessment order.

87Enforcement of order against property under effective control

(1)The State may apply to the Supreme Court for an order declaring that particular property is under the effective control of a person against whom the court has made a proceeds assessment order (the controlling person).

(2)The commission or, if the application is made for the State by a police officer, the commissioner of the police service must give the following persons written notice of the application—

(a)the controlling person;

(b)anyone else the commission or the commissioner of the police service considers may have an interest in the property.

(3)The controlling person, and anyone else who claims an interest in the property, may appear at the hearing of the application.

(4)If the court is satisfied that the property is under the effective control of the controlling person, the court may make an order declaring that the property is available to satisfy the proceeds assessment order to the extent to which other property of the controlling person is not readily available for the purpose.

(5)The proceeds assessment order may be enforced against the property to the extent stated in the declaration.

(6)The court may also make a restraining order in relation to the property.

(7)The absence of a person required to be given notice of the application does not prevent the court from making the order.

(8)Subsection (5) does not apply to property that is the subject of a hardship order.

s 87 amd 2004 No. 43s 36A; 2013 No. 21s 37

88Charge on property

(1)On the making of a proceeds assessment order against a person, all the interests of the person in property are, while the amount payable under the order remains unpaid, charged in favour of the State to the extent necessary to secure payment of the amount.

(2)A charge created under subsection (1)—

(a)is subject to every encumbrance on the property that came into existence before the charge and that would, apart from this paragraph, have priority over the charge; and

(b)has priority over all other encumbrances; and

(c)is not affected by any change of ownership of the interest charged, unless the charge stops having effect under subsection (3); and

(d)is declared to be a statutory interest to which section 73(2) of the Personal Property Securities Act 2009 (Cwlth) applies.

(3)The charge stops having effect if any of the following happens—

(a)the proceeds assessment order is discharged on the hearing of an appeal against the making of the order;

(b)the amount payable to the State is paid;

(c)the relevant person becomes bankrupt;

(d)the interest charged is sold or otherwise disposed of under this Act other than under a condition of a restraining order under this chapter, chapter 2A or chapter 3 or by order of the Supreme Court under section 46, 93ZP or 138;

(e)the interest charged is sold to a purchaser for sufficient consideration who, at the time of purchase, had no notice of the charge;

(f)a hardship order is made excluding property from the operation of the charge.

(4)If a law, whether or not a law of the State, provides for the registration of title to, interests in, or charges over, property charged under subsection (1), the public trustee or an appropriate officer may cause the charge to be registered under that law.

(5)For subsection (4), it is declared that the charge may be registered under the Land Act 1994 or the Land Title Act 1994 over the property of the relevant person.

(6)The public trustee or the appropriate officer may lodge a request with the registrar for the registration of the charge.

(7)The request must be in the appropriate form.

(8)The registrar must register the charge over the land on lodgement of—

(a)the request; and

(b)a certificate of the public trustee or the appropriate officer stating there is a charge over the land under this section for the amount payable under the proceeds assessment order that is unpaid.

(9)As soon as practicable after the amount payable under the proceeds assessment order has been paid or the charge otherwise stops having effect under subsection (3), the public trustee or the appropriate officer must lodge a request with the registrar in the appropriate form to release the charge.

(10)The registrar must register the release of the charge over the land.

(11)In this section—

relevant person means the person against whom the proceeds assessment order is made.

s 88 amd 2009 No. 2s 32; 2010 No. 44s 171; 2013 No. 21s 38

89Effect of other actions on proceeds assessment order

(1)The quashing of a conviction for a serious crime related activity does not affect the validity of a proceeds assessment order.

(2)If a proceeds assessment order is made against a deceased, the order has effect before final distribution of the estate as if the person had died the day after the making of the order.

ch 2 pt 5 div 4 hdg ins 2013 No. 21s 39

89AApplication for hardship order

(1)A dependant of the person against whom a proceeds assessment order is made may apply to the Supreme Court for a hardship order.

(2)Unless the court gives leave under section 89B, the application must be made within 3 months after—

(a)for property the subject of an order under section 87(4)—the day the order is made; or

(b)for property the subject of a charge under section 88—the day the proceeds assessment order is made.

(3)For each application under this section, including an application for leave, the applicant must give the State and anyone else who has an interest in the property written notice of—

(a)the making of the application; and

(b)the grounds for the application, including, for an application for a hardship order, a description of the property the subject of an order under section 87(4) or a charge under section 88 that the application relates to; and

(c)the facts relied on.

(4)The grounds for the application and the facts relied on must be stated fully in the notice.

(5)The notice must be given at least 28 days before the day set for hearing the application.

(6)The written notice must be accompanied by any affidavit the applicant intends to rely on at the hearing of the application.

(7)The State must be a party to the application.

(8)Anyone else who is given notice of the application may appear at the hearing of the application.

(9)If the State proposes to oppose the application, the State must give the applicant notice of intention to oppose the application.

(10)The State must give the applicant notice of the grounds for opposing the application.

s 89A ins 2013 No. 21s 39

89BWhen Supreme Court may give leave for s 89A

The Supreme Court may give leave to apply for a hardship order after the end of the period mentioned in section 89A(2) if it is satisfied the delay in applying was not because of the applicant’s neglect.

s 89B ins 2013 No. 21s 39

89CMaking of hardship order

(1)The Supreme Court may, on an application under section 89A, make an order (hardship order) excluding special property from the operation of an order under section 87(4) or a charge under section 88 if it is satisfied—

(a)the applicant is a dependant of the person against whom the proceeds assessment order was made; and

(b)the operation of the order under section 87(4) or charge under section 88 will cause hardship to the dependant.

(2)However, the court must not make a hardship order in favour of an adult dependant of the person against whom a proceeds assessment order was made unless the court is satisfied the dependant had no knowledge of the serious crime related activity which formed the basis of the proceeds assessment order.

(3)In this section—

special property means—

(a)any property, if the last change of ownership resulted from the death of someone other than the person against whom the proceeds assessment order was made; or

Example—

property given under a will

(b)property that is or was the dependant’s principal place of residence, if—

(i)the last change of ownership of the property was at least 6 years before the serious crime related activity which formed the basis of the proceeds assessment order started happening; and

(ii)the property was occupied by the dependant as his or her principal place of residence for a consecutive period of 2 years during the 6-year period mentioned in subparagraph (i).

s 89C ins 2013 No. 21s 39

89DProperty not to be disposed of during hardship order period

(1)During the hardship order period, the State must not, without the leave of the Supreme Court—

(a)dispose of—

(i)property the subject of an order under section 87(4); or

(ii)property the subject of a charge under section 88; or

(b)authorise anyone else to dispose of property mentioned in paragraph (a).

(2)In this section—

hardship order period means the period of 3 months starting on the later of—

(a)the day the following order was made—

(i)for property the subject of an order under section 87(4)—that order;

(ii)for property the subject of a charge under section 88—the proceeds assessment order; or

(b)the day on which all proceedings relating to hardship orders are finally decided.

s 89D ins 2013 No. 21s 39

ch 2 pt 5A hdg ins 2013 No. 21s 40

ch 2 pt 5A div 1 hdg ins 2013 No. 21s 40

89EMeaning of current or previous wealth

(1)The current or previous wealth, of a person, is the amount that is the total value of the following—

(a)all of the person’s property, including property that the person has, at any time, disposed of, whether by gift, sale or any other means;

(b)all benefits provided to, and benefits derived by, the person;

whether acquired, disposed of, provided or derived before or after the commencement of this section and whether within or outside Queensland.

(2)However, the current or previous wealth, of a person, does not include the value of any of the following—

(a)any property that has been forfeited under this or any other Act;

(b)any property, benefit or benefit derived that was taken into account for making an earlier unexplained wealth order against the person;

(c)any property, benefit or benefit derived that was taken into account for making a tainted property substitution declaration against the person.

s 89E ins 2013 No. 21s 40

89FApplication for unexplained wealth order

(1)The State may apply to the Supreme Court for an order (unexplained wealth order) requiring a person to pay to the State an amount assessed by the court to be the value of the person’s unexplained wealth.

(2)The State must give notice of the application to—

(a)the person against whom the order is sought; and

(b)anyone else who the commission, or if the application is made for the State by a police officer, the commissioner of the police service reasonably suspects may be affected by the order.

(3)A person given notice under subsection (2) may appear at the hearing of the application.

(4)The absence of a person required to be given notice of the application does not prevent the Supreme Court from making an unexplained wealth order.

s 89F ins 2013 No. 21s 40

89GMaking of unexplained wealth order

(1)The Supreme Court must, on an application under section 89F, make an unexplained wealth order against a person if it is satisfied there is a reasonable suspicion that—

(a)the person—

(i)has engaged in 1 or more serious crime related activities; or

(ii)has acquired, without giving sufficient consideration, serious crime derived property from a serious crime related activity of someone else, whether or not the person knew or suspected the property was derived from illegal activity; and

(b)any of the person’s current or previous wealth was acquired unlawfully.

(2)However, the court may refuse to make the order if the court is satisfied it is not in the public interest to make the order.

(3)A finding of the court under subsection (1)(a)—

(a)need not be based on a reasonable suspicion that a particular offence was committed; and

(b)may be based on a reasonable suspicion that some offence that is a serious crime related activity was committed.

(4)The court may not make an unexplained wealth order on an application that relates only to external serious crime related activity unless it is satisfied that no action has been taken under a law of the Commonwealth or any other place outside Queensland, including outside Australia, in relation to the proceeds of the external serious crime related activity.

(5)For subsection (4), an affidavit by an appropriate officer that includes a statement that the officer has made due enquiry and is satisfied that no action has been taken under a law of the Commonwealth or any place outside Queensland, including outside Australia, against any property in relation to the proceeds of the external serious crime related activity is proof, in the absence of evidence to the contrary, of the matters contained in the affidavit.

(6)The court may make the ancillary orders the court considers appropriate when it makes the unexplained wealth order or at a later time.

s 89G ins 2013 No. 21s 40

89HAmount payable under unexplained wealth order

(1)An unexplained wealth order must state, as the amount required to be paid to the State, the value of the person’s unexplained wealth.

(2)The value of the person’s unexplained wealth must be assessed by the Supreme Court under division 2.

(3)However, the court may reduce the amount that would otherwise be payable as assessed under division 2 if it is satisfied it is in the public interest to do so.

s 89H ins 2013 No. 21s 40

89IUnexplained wealth order increase if forfeiture ends etc.

(1)This section applies if—

(a)the Supreme Court makes an unexplained wealth order against a person; and

(b)in deciding the value of the person’s unexplained wealth, the court did not take into account the value of property mentioned in section 89E(2); and

(c)after the unexplained wealth order is made, the forfeiture of the property, or the earlier unexplained wealth order or the tainted property substitution declaration, ends because of an appeal.

(2)The State may apply to the Supreme Court for a variation of the unexplained wealth order to increase the amount payable under the order.

(3)If the Supreme Court considers an increase appropriate, it may vary the amount payable under the unexplained wealth order.

s 89I ins 2013 No. 21s 40

89JNotice of unexplained wealth order

(1)Within 28 days after an unexplained wealth order is made, the commission or, if the application for the order was made for the State by a police officer, the commissioner of the police service must give the following persons the documents mentioned in subsection (2)—

(a)all known dependants of the person against whom the order is made;

(b)anyone else the commission or the commissioner of the police service reasonably suspects may be affected by the order.

(2)For subsection (1), the documents are—

(a)a copy of the unexplained wealth order; and

(b)a written notice stating that a dependant of the person against whom the order is made may apply to the Supreme Court, within 3 months after the day the order is made, for a hardship order under section 89Q.

(3)If required by the court, the commission or the commissioner of the police service must also give notice of the making of the order to the persons the court considers appropriate, in the way and within the time the court considers appropriate.

s 89J ins 2013 No. 21s 40

ch 2 pt 5A div 2 hdg ins 2013 No. 21s 40

89KApplication of div 2

This division applies to property in Queensland or elsewhere.

s 89K ins 2013 No. 21s 40

89LAssessment for unexplained wealth order

(1)The unexplained wealth of a person is the amount mentioned in subsection (2) or (3).

(2)For subsection (1), the amount may be the amount equivalent to—

(a)the person’s current or previous wealth of which the State has given evidence; less

(b)any of the current or previous wealth mentioned in paragraph (a) that the person proves was lawfully acquired.

(3)Alternatively, for subsection (1), the amount may be the amount equivalent to the person’s expenditure for a period of which the State has given evidence less the income for that period that the person proves was lawfully acquired.

(4)For subsection (2), the value of a thing included as current or previous wealth is—

(a)if the wealth has been disposed of, the greater of—

(i)the value when the wealth was acquired; or

(ii)the value immediately before the wealth was disposed of; or

(b)otherwise, the greater of—

(i)the value when the wealth was acquired; or

(ii)the value when the application for the unexplained wealth order was made.

(5)However, the court may—

(a)treat, as the value of the person’s current or previous wealth, the value it would have had if it had been acquired at the time the court decides the application; and

(b)without limiting paragraph (a), have regard to any decline in the purchasing power of money between the time the current or previous wealth was acquired and the time the court decides the application.

(6)In this section—

acquired includes provided or derived.

s 89L ins 2013 No. 21s 40

ch 2 pt 5A div 3 hdg ins 2013 No. 21s 40

89MUnexplained wealth order amount is debt payable to State

(1)The amount a person is ordered to pay to the State under an unexplained wealth order is a debt payable by the person to the State.

(2)The unexplained wealth order may be enforced as if it were a money order made by the Supreme Court in a civil proceeding taken by the State against the person for the recovery of the amount payable under the unexplained wealth order.

s 89M ins 2013 No. 21s 40

89NEnforcement of order against property under effective control

(1)The State may apply to the Supreme Court for an order declaring that particular property is under the effective control of a person against whom the court has made an unexplained wealth order (the controlling person).

(2)The commission or, if the application is made for the State by a police officer, the commissioner of the police service must give the following persons written notice of the application—

(a)the controlling person;

(b)anyone else the commission or the commissioner of the police service considers may have an interest in the property.

(3)The controlling person, and anyone else who claims an interest in the property, may appear at the hearing of the application.

(4)If the court is satisfied that the property is under the effective control of the controlling person, the court may make an order declaring that the property is available to satisfy the unexplained wealth order to the extent to which other property of the controlling person is not readily available for the purpose.

(5)The unexplained wealth order may be enforced against the property to the extent stated in the declaration.

(6)The court may also make a restraining order in relation to the property.

(7)The absence of a person required to be given notice of the application does not prevent the court from making the order.

(8)Subsection (5) does not apply to property that is the subject of a hardship order.

s 89N ins 2013 No. 21s 40

89OCharge on property

(1)On the making of an unexplained wealth order against a person, all the interests of the person in property are, while the amount payable under the order remains unpaid, charged in favour of the State to the extent necessary to secure payment of the amount.

(2)A charge created under subsection (1)—

(a)is subject to every encumbrance on the property that came into existence before the charge and that would, apart from this paragraph, have priority over the charge; and

(b)has priority over all other encumbrances; and

(c)is not affected by any change of ownership of the interest charged, unless the charge stops having effect under subsection (3); and

(d)is declared to be a statutory interest to which the Personal Property Securities Act 2009 (Cwlth), section 73(2) applies.

(3)The charge stops having effect if any of the following happens—

(a)the unexplained wealth order is discharged on an appeal against the making of the order;

(b)the amount payable to the State is paid;

(c)the relevant person becomes bankrupt;

(d)the interest charged is sold or otherwise disposed of under this Act other than—

(i)under a condition of a restraining order under this chapter, chapter 2A or chapter 3; or

(ii)by order of the Supreme Court under section 46, 93ZP or 138;

(e)the interest charged is sold to a purchaser for sufficient consideration who, at the time of purchase, had no notice of the charge;

(f)a hardship order is made excluding property from the operation of the charge.

(4)If a law, whether or not a law of the State, provides for the registration of title to, interests in, or charges over, property charged under subsection (1), the public trustee or an appropriate officer may cause the charge to be registered under that law.

(5)For subsection (4), it is declared that the charge may be registered under the Land Act 1994 or the Land Title Act 1994 over the property of the relevant person.

(6)The public trustee or the appropriate officer may lodge a request with the registrar for the registration of the charge.

(7)The request must be in the appropriate form.

(8)The registrar must register the charge over the land on lodgement of—

(a)the request; and

(b)a certificate of the public trustee or the appropriate officer stating there is a charge over the land under this section for the amount payable under the unexplained wealth order that is unpaid.

(9)As soon as practicable after the amount payable under the unexplained wealth order has been paid or the charge otherwise stops having effect under subsection (3), the public trustee or the appropriate officer must lodge a request with the registrar in the appropriate form to release the charge.

(10)The registrar must register the release of the charge over the land.

(11)In this section—

relevant person means the person against whom the unexplained wealth order is made.

s 89O ins 2013 No. 21s 40

89PEffect of other actions on unexplained wealth order

(1)The quashing of a conviction of a serious criminal offence in relation to the serious crime related activity that formed the basis of an unexplained wealth order does not affect the validity of the order.

(2)If an unexplained wealth order is made against a deceased, the order has effect before final distribution of the estate as if the person had died the day after the making of the order.

s 89P ins 2013 No. 21s 40

ch 2 pt 5A div 4 hdg ins 2013 No. 21s 40

89QApplication for hardship order

(1)A dependant of the person against whom an unexplained wealth order is made may apply to the Supreme Court for a hardship order.

(2)Unless the court gives leave under section 89R, the application must be made within 3 months after—

(a)for property the subject of an order under section 89N(4)—the day the order is made; or

(b)for property the subject of a charge under section 89O—the day the unexplained wealth order is made.

(3)For each application under this section, including an application for leave, the applicant must give the State and anyone else who has an interest in the property written notice of—

(a)the making of the application; and

(b)the grounds for the application, including, for an application for a hardship order, a description of the property the subject of an order under section 89N(4) or a charge under section 89O that the application relates to; and

(c)the facts relied on.

(4)The grounds for the application and the facts relied on must be stated fully in the notice.

(5)The notice must be given at least 28 days before the day set for hearing the application.

(6)The written notice must be accompanied by any affidavit the applicant intends to rely on at the hearing of the application.

(7)The State must be a party to the application.

(8)Anyone else who is given notice of the application may appear at the hearing of the application.

(9)If the State proposes to oppose the application, the State must give the applicant notice of intention to oppose the application.

(10)The State must give the applicant notice of the grounds for opposing the application.

s 89Q ins 2013 No. 21s 40

89RWhen Supreme Court may give leave for s 89Q

The Supreme Court may give leave to apply for a hardship order after the end of the period mentioned in section 89Q(2) if it is satisfied the delay in applying was not because of the applicant’s neglect.

s 89R ins 2013 No. 21s 40

89SMaking of hardship order

(1)The Supreme Court may, on an application under section 89Q, make an order (hardship order) excluding special property from the operation of an order under section 89N(4) or a charge under section 89O if it is satisfied—

(a)the applicant is a dependant of the person against whom the unexplained wealth order was made; and

(b)the operation of the order under section 89N(4) or charge under section 89O will cause hardship to the dependant.

(2)However, the court must not make a hardship order in favour of an adult dependant of the person against whom an unexplained wealth order was made unless the court is satisfied the dependant had no knowledge of the serious crime related activity which formed the basis of the unexplained wealth order.

(3)In this section—

special property means—

(a)any property, if the last change of ownership resulted from the death of someone other than the person against whom the unexplained wealth order was made; or

Example—

property given under a will

(b)property that is or was the dependant’s principal place of residence, if—

(i)the last change of ownership of the property was at least 6 years before the serious crime related activity which formed the basis of the unexplained wealth order started happening; and

(ii)the property was occupied by the dependant as his or her principal place of residence for a consecutive period of 2 years during the 6-year period mentioned in subparagraph (i).

s 89S ins 2013 No. 21s 40

89TProperty not to be disposed of during hardship order period

(1)During the hardship order period, the State must not, without the leave of the Supreme Court—

(a)dispose of—

(i)property the subject of an order under section 89N(4); or

(ii)property the subject of a charge under section 89O; or

(b)authorise anyone else to dispose of property mentioned in paragraph (a).

(2)In this section—

hardship order period means the period of 3 months starting on the later of—

(a)the day the following order was made—

(i)for property the subject of an order under section 89N(4)—that order;

(ii)for property the subject of a charge under section 89O—the unexplained wealth order; or

(b)the day on which all proceedings relating to hardship orders are finally decided.

s 89T ins 2013 No. 21s 40

90Serious crime related activity can form basis of a number of orders

(1)The fact that a restraining order or a forfeiture order has been made on the basis of a person’s serious crime related activity does not prevent the making of another restraining order or forfeiture order on the basis of that activity.

(2)Also, the fact that a forfeiture order has been made on the basis of a person’s serious crime related activity does not prevent the making of a proceeds assessment order or an unexplained wealth order on the basis of that activity.

(3)In addition, the fact that a proceeds assessment order or an unexplained wealth order has been made on the basis of a person’s serious crime related activity does not prevent the making of a forfeiture order on the basis of that activity.

(4)However, a proceeds assessment order and an unexplained wealth order can not both be made on the basis of the same serious crime related activity of a person.

(5)If the State has unsuccessfully applied—

(a)for a proceeds assessment order on the basis of a person’s serious crime related activity—the State can not apply for an unexplained wealth order against the person on the basis of the same serious crime related activity; or

(b)for an unexplained wealth order on the basis of a person’s serious crime related activity—the State can not apply for a proceeds assessment order against the person on the basis of the same serious crime related activity.

s 90 amd 2013 No. 21s 41

91Effect of death of person involved

(1)A notice authorised or required to be given under this chapter to a person who is dead is taken to have been given if it is given to the person’s legal personal representative.

(2)A reference in this chapter to an interest in property of a person who is dead is a reference to an interest in the property the person had immediately before death.

(3)An order may be applied for and made under this chapter—

(a)in relation to a person’s interest in property even if the person is dead; and

(b)on the basis of the previous activities of a person who is dead.

92Effect of death of joint owner of restrained property

(1)This section applies only if a person who is a joint owner of restrained property under a restraining order dies while the restraining order is in force.

(2)The death of the person does not, while the order is in force, operate to vest the deceased’s interest in the surviving joint owner or owners.

(3)Also, the restraining order continues to apply to the interest as if the person had not died.

(4)A forfeiture order applying to the interest applies as if the order took effect immediately before the person died.

(5)If a restraining order stops applying to property without a forfeiture order being made in relation to the property, subsection (2) is taken not to have applied to the property.

93No stay of proceedings

The fact that a criminal proceeding has been started against a person, whether or not under this Act, is not a ground on which the Supreme Court may stay a proceeding against or in relation to the person under this chapter that is not a criminal proceeding.

ch 2A hdg ins 2013 No. 21s 42

ch 2A pt 1 hdg ins 2013 No. 21s 42

93AExplanation of ch 2A

(1)This chapter enables proceedings to be started for the forfeiture of particular property of, or gifts given to someone else during a particular period by, a person who has been convicted of a qualifying offence for which a serious drug offence certificate has been issued.

(2)It does this by enabling the Supreme Court, as a preliminary step, to make a restraining order preventing particular property being dealt with without the court’s leave.

(3)Also, it allows—

(a)the person against whom a serious drug offender confiscation order is made to keep protected property; and

(b)a dependant of the person against whom a serious drug offender confiscation order is made to seek relief from the Supreme Court on the basis of hardship resulting from the order.

s 93A ins 2013 No. 21s 42

93BApplication of ch 2A

(1)This chapter applies in relation to a qualifying offence, or a pre-qualifying offence, for which a person is charged after the commencement, whether the offence was committed before or after the commencement.

(2)In this section—

commencement means the commencement of this section.

s 93B ins 2013 No. 21s 42

ch 2A pt 2 hdg ins 2013 No. 21s 42

93CDefinitions for ch 2A

In this chapter—

cancelled, in relation to a serious drug offence certificate, means cancelled under the Penalties and Sentences Act 1992, section 161K.

category A offence see the Penalties and Sentences Act 1992, section 161F.

category B offence see the Penalties and Sentences Act 1992, section 161F.

category C offence see the Penalties and Sentences Act 1992, section 161F.

convicted, of a qualifying offence or a pre-qualifying offence, means convicted of the offence within the meaning of the Penalties and Sentences Act 1992, section 4.

effective control, of property, see section 93D.

issued, in relation to a serious drug offence certificate, means issued under the Penalties and Sentences Act 1992, section 161G.

pre-qualifying offence see section 93F.

prescribed respondent see—

(a)for part 3—section 93G; or

(b)for part 4—section 93ZZ(1).

protected property, of a person, see section 93E.

qualifying offence see section 93F.

serious drug offence certificate see the Penalties and Sentences Act 1992, section 161G.

serious drug offender confiscation order see section 93ZY.

s 93C ins 2013 No. 21s 42

93DMeaning of effective control

(1)

Effective control, of property, has the same meaning as in section 20.

Note—

The definition of property is given by the Acts Interpretation Act 1954, section 36.

(2)For subsection (1), a reference in section 20 to chapter 2 is taken to be a reference to this chapter.

s 93D ins 2013 No. 21s 42

93EMeaning of protected property

(1)For this chapter, protected property, of a person, means property of the person of a kind mentioned in a relevant provision that would not, if the person became a bankrupt under the Bankruptcy Act 1966 (Cwlth), be divisible amongst the person’s creditors.

(2)A regulation may make provision for how the Bankruptcy Act 1966 (Cwlth), section 116(2) is to apply for the purpose of subsection (1).

(3)In this section—

relevant provision means the following provisions of the Bankruptcy Act 1966 (Cwlth)—

(a)section 116(2)(b)(i);

(b)section 116(2)(ba);

(c)section 116(2)(c)(i);

(d)section 116(2)(ca);

(e)section 116(2)(g).

(4)For subsection (3), definition relevant provision, paragraph (b), section 116(2)(ba)(iii) is to be disregarded.

s 93E ins 2013 No. 21s 42

93FMeaning of qualifying offence and pre-qualifying offence

(1)A category A offence is a qualifying offence.

(2)Also, a category B offence or category C offence is a qualifying offence if—

(a)the offence is committed by a person within 7 years after committing the following offences (pre-qualifying offences)—

(i)2 category B offences;

(ii)2 category C offences;

(iii)1 category B offence and 1 category C offence; and

(b)a serious drug offence certificate is issued and has not been cancelled for each pre-qualifying offence.

(3)For subsection (2), if an offence has been committed over a period of time, the offence is taken to have been committed on the day the person starts committing the offence.

(4)Subsection (5) applies if—

(a)an offence (a relevant offence) is a qualifying offence or pre-qualifying offence on the basis of which a serious drug offender confiscation order has been made; and

(b)the serious drug offender confiscation order has not been discharged under part 4, division 5.

(5)Despite subsections (1) and (2), the relevant offence can not be a qualifying offence or pre-qualifying offence for the purposes of a later serious drug offender confiscation order.

s 93F ins 2013 No. 21s 42

ch 2A pt 3 hdg ins 2013 No. 21s 42

ch 2A pt 3 div 1 hdg ins 2013 No. 21s 42

93GDefinition for pt 3

In this part—

prescribed respondent means a person who—

(a)is about to be, or has been, charged with the qualifying offence to which an application for a restraining order or a restraining order relates; or

(b)has been convicted of a qualifying offence.

s 93G ins 2013 No. 21s 42

ch 2A pt 3 div 2 hdg ins 2013 No. 21s 42

93HApplication for restraining order

(1)The State may apply to the Supreme Court for an order (restraining order) restraining any person from dealing with property stated in the order (the restrained property) other than in a stated way or in stated circumstances.

(2)If the application is made in urgent circumstances or the prescribed respondent is about to be charged with a qualifying offence, the application may be made without notice to the prescribed respondent or anyone else to whom it relates.

(3)The application must be supported by an affidavit of an authorised commission officer or a police officer.

(4)The application may relate to all or any of the following property—

(a)for property of a prescribed respondent—

(i)stated property; or

(ii)a stated class of property; or

(iii)all property; or

(iv)all property other than stated property; or

(v)all or stated property acquired after the restraining order is made;

(b)stated property, or a stated class of property, of a stated person, other than a prescribed respondent.

(5)The court may refuse to consider the application until the applicant gives the court all the information the court requires about the application in the way the court requires.

Example—

The court may require additional information supporting the application to be given by affidavit or statutory declaration.

s 93H ins 2013 No. 21s 42

93IAffidavit—general requirements

The affidavit of the authorised commission officer or police officer must state the following—

(a)the qualifying offence on which the application is based;

(b)the officer suspects the prescribed respondent committed the qualifying offence and the reason for the suspicion;

(c)if the qualifying offence is a category B offence—details of the pre-qualifying offences;

(d)if the qualifying offence is a category C offence—

(i)details of the pre-qualifying offences; and

(ii)the officer suspects the prescribed respondent committed the qualifying offence with a commercial purpose and the reason for the suspicion;

(e)details of the property sought to be restrained;

(f)the officer suspects the property sought to be restrained is the property of the person mentioned in the affidavit and the reason for the suspicion.

s 93I ins 2013 No. 21s 42

93JParticular requirements for affidavit relating to relevant property that is not prescribed respondent’s property

(1)This section applies only if an authorised commission officer’s or a police officer’s affidavit relates to property of someone other than the prescribed respondent.

(2)This section is in addition to section 93I.

(3)The officer’s affidavit must state—

(a)the officer suspects that the property is either—

(i)under the prescribed respondent’s effective control; or

(ii)a gift given by the prescribed respondent to someone else within 6 years before the prescribed respondent was charged with the qualifying offence; and

(b)the reason for the suspicion.

s 93J ins 2013 No. 21s 42

93KNotice of application for restraining order

(1)Subject to section 93L(2), the State must give the following persons notice of the application—

(a)each person whose property is the subject of the application;

(b)anyone else the authorised commission officer or police officer whose affidavit supports the application considers has an interest in the property.

Note—

Under the Uniform Civil Procedure Rules 1999, an application filed in a court must be served on each respondent at least 3 business days before the day set for hearing the application.

(2)Notice given under subsection (1)(a) must be accompanied by a copy of the affidavit supporting the application.

(3)Notice given under subsection (1)(b) must include a statement informing the person that if the person asks, the person will be given a copy of the affidavit supporting the application.

s 93K ins 2013 No. 21s 42

93LHearing of application

(1)The Supreme Court must not hear an application for a restraining order unless satisfied the person whose property is the subject of the application has received reasonable notice of the application.

(2)Despite subsection (1), the court must consider the application without notice having been given if an appropriate officer asks the court to do so.

(3)However, the Supreme Court may, at any time before finally deciding the application, direct the State to give notice of the application to a stated person or class of persons in the way and within the time the court considers appropriate.

(4)A person whose property is the subject of the application, and anyone else who claims to have an interest in the property, may appear at the hearing of the application.

s 93L ins 2013 No. 21s 42

ch 2A pt 3 div 3 hdg ins 2013 No. 21s 42

93MMaking restraining order

(1)The Supreme Court must make a restraining order in relation to property if, after considering the application and the relevant affidavit, it is satisfied—

(a)the application relates to a prescribed respondent; and

(b)there are reasonable grounds for the suspicions on which the application is based.

(2)However, the court may refuse to make the order if—

(a)the court is satisfied in the particular circumstances it is not in the public interest to make the order; or

(b)the State fails to give the court the undertakings the court considers appropriate for the payment of damages or costs, or both, in relation to the making and operation of the order.

(3)The commission or, if the application is made by a police officer, the commissioner of the police service may give the court the undertakings the court requires.

(4)The court may make a restraining order in relation to a prescribed respondent who is about to be charged with a qualifying offence only if the court is satisfied the prescribed respondent will be charged with the qualifying offence within the next 48 hours.

(5)The making of a restraining order does not prevent the person whose property is restrained under the order from giving Legal Aid a charge over the property as a condition of an approval to give legal assistance under the Legal Aid Act in relation to—

(a)a proceeding under this Act; or

(b)a criminal proceeding in which the person is a defendant, including any proceeding on appeal against conviction or sentence.

s 93M ins 2013 No. 21s 42

93NAbsence of risk does not prevent making of order

The Supreme Court may make a restraining order against property whether or not there is a risk of the property being dealt with in a way that would defeat the operation of this Act.

s 93N ins 2013 No. 21s 42

93OConditions of restraining order

(1)It is a condition of every restraining order that the person whose property is restrained under the order must preserve the property.

(2)The Supreme Court may impose the other conditions the court considers appropriate, including, but not limited to, the following—

(a)a condition about who is to have possession of the property;

(b)a condition of a kind mentioned in section 93P or 93Q.

s 93O ins 2013 No. 21s 42

93PConditions about dealing with property by agreement

The Supreme Court may impose a condition authorising the commission or, if the application is made by a police officer, the commissioner of the police service to agree to—

(a)the disposal of the property restrained under the restraining order by its owner to enable the proceeds of the disposal to be applied to satisfy all or part of a debt payable under another order made under this Act; or

(b)the application of the property by its owner to satisfy all or part of a debt payable under another order made under this Act.

s 93P ins 2013 No. 21s 42

93QConditions about particular payments out of restrained property

(1)The Supreme Court may impose a condition providing for all or any of the following to be paid out of the property of a particular person, or a stated part of the person’s property, restrained under the restraining order—

(a)the person’s reasonable living expenses and reasonable business expenses;

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

(c)a stated debt incurred in good faith by the person.

(2)Subsection (1) is the only provision of this chapter under which provision may be made for the payment of expenses or a debt mentioned in subsection (1).

(3)Also, subsection (1) applies only if the court is satisfied the person can not meet the expenses or debt out of property that is not restrained under the order and the person has no source of income to meet the expenses or debt.

(4)Further, subsection (1) does not authorise the imposition of a condition providing for the payment of a person’s legal expenses that are expenses payable because—

(a)the person is a party to a proceeding under this Act; or

(b)the person is a defendant in a criminal proceeding, including any proceeding on appeal against a conviction or sentence.

s 93Q ins 2013 No. 21s 42

93RRestraining order may direct public trustee to take control of property

If the Supreme Court considers the circumstances require it, the court may, in a restraining order or a later order, direct the public trustee to take control of some or all of the property restrained under the order.

s 93R ins 2013 No. 21s 42

93SDuration of restraining order

(1)A restraining order made on an application made without notice to the person to whom it relates is in force for the period of not more than 7 days stated in the order or, if no period is stated, 7 days after it is made.

(2)However, a restraining order made on the basis that the prescribed respondent is about to be charged with a qualifying offence lapses if the person is not charged with the offence or a related offence within 48 hours after the order is made.

(3)Otherwise, a restraining order is in force for the period stated in the order or, if no period is stated, for 1 year after it is made.

(4)This section applies subject to division 8.

(5)In this section—

related offence means an offence that would have been a qualifying offence when the restraining order was made.

s 93S ins 2013 No. 21s 42

ch 2A pt 3 div 4 hdg ins 2013 No. 21s 42

93TSupreme Court may make other orders

(1)The Supreme Court may make the other orders in relation to a restraining order the court considers appropriate, including, but not limited to, orders mentioned in sections 93V and 93W.

(2)However, section 93V(1)(f) is the only provision of this chapter under which provision may be made for the payment of legal expenses that are expenses payable because—

(a)the person is a party to a proceeding under this Act; or

(b)the person is a defendant in a criminal proceeding, including any proceeding on appeal against a conviction or sentence.

(3)The court may make an order under this section—

(a)when making the restraining order or, on application, at a later time; and

(b)whether or not it affects a person whose property is restrained under the restraining order.

(4)Any of the following may apply for an order, other than an investigation order, under this section—

(a)the State;

(b)the prescribed respondent;

(c)a person whose property is restrained under the restraining order;

(d)if the restraining order directs the public trustee to take control of the restrained property under the restraining order—the public trustee.

(5)Another person may apply for an order, other than an investigation order, under this section with the Supreme Court’s leave.

(6)An applicant under subsection (4) must give notice of the making of the application to each other person who may apply under subsection (4) for an order under this section.

(7)An applicant under subsection (5) must give notice of the making of the application to each person who may apply under subsection (4) for an order under this section.

(8)The State may apply for an investigation order.

(9)The State must give notice of an application under subsection (8) to—

(a)the person to whom the order is to be directed if the order is to be made under section 93W(1)(a), (b), or (c); or

(b)the person whose property is to be seized if the order is made under section 93W(1)(d).

(10)Subsections (6), (7) and (9) do not apply to an application for an order under this section made in a proceeding on an application for a restraining order that is made without notice to any person to whom it relates.

(11)Also, subsection (9) does not apply to an application for an investigation order of which notice does not have to be given because of section 93U(2).

s 93T ins 2013 No. 21s 42

93UHearing of application

(1)The Supreme Court must not hear an application for an order under section 93T unless satisfied the person who is, or whose property is, the subject of the application has received reasonable notice of the application.

(2)Despite subsection (1), the court must consider an application for an investigation order without notice having been given if the DPP asks the court to do so.

(3)However, the Supreme Court may, at any time before finally deciding the application, direct the State to give notice of the application to a stated person or class of persons in the way, and within the time, the court considers appropriate.

(4)A person who is, or whose property is, the subject of the application, and anyone else who claims to have an interest in the property, may appear at the hearing of the application.

s 93U ins 2013 No. 21s 42

93VAdministration orders Supreme Court may make

(1)The court may make any of the following orders under section 93T—

(a)an order varying the property restrained under the restraining order;

(b)an order imposing additional conditions on the restraining order or varying a condition of the order;

(c)an order about the performance of an undertaking for the payment of damages or costs given for the restraining order;

(d)if the restraining order directs the public trustee to take control of the property, an order—

(i)regulating the way the public trustee may perform functions under the restraining order; or

(ii)deciding any question about the property, including a question affecting the liabilities of the owner of the property or the functions of the public trustee;

(e)an order requiring a person whose property is restrained under the restraining order to do anything necessary or convenient to bring the property within Queensland;

(f)an order for the payment to Legal Aid, from property restrained under the restraining order, of expenses payable by the person whose property is restrained because—

(i)the person is a party to a proceeding under this Act; or

(ii)the person is a defendant in a criminal proceeding, including any proceeding on appeal against conviction or sentence.

(2)A person must not contravene an order made under subsection (1)(e).

Maximum penalty—100 penalty units or 2 years imprisonment.

s 93V ins 2013 No. 21s 42

93WInvestigation orders Supreme Court may make

(1)Also, the court may make any of the following orders under section 93T (each an investigation order)—

(a)an order (examination order) requiring a person whose property is restrained under the restraining order or a stated person to attend for examination on oath before the court or a court officer about the following—

(i)the affairs of any person whose property is restrained under the restraining order;

(ii)the nature and location of any property of a person whose property is restrained under the restraining order;

(b)an order (also an examination order) requiring the spouse of a person whose property is restrained under the restraining order to attend for examination on oath before the court or a court officer about the spouse’s affairs, including the nature and location of property in which the spouse or the person has an interest;

(c)an order (property particulars order) directing any of the following to give the commission, within a stated time, a sworn statement of particulars of, or of dealings with, any property (whether or not the restrained property) as the court considers appropriate—

(i)a person whose property is restrained under the restraining order;

(ii)a person whose property the restrained property was at any time before the restraining order was made;

(iii)if the person mentioned in subparagraph (i) or (ii) is or was a corporation—an executive officer of the corporation;

(d)an order (property seizure order) requiring or authorising a commission officer or a police officer to seize property restrained under the restraining order.

Note—

See division 5, subdivision 3 for the general effect of a property seizure order.

(2)An order mentioned in subsection (1)(d) may state the powers the commission officer or police officer may exercise for giving effect to the order.

(3)Subsection (4) applies if an examination order is made without notice of the application for the order being given to a person required to attend for examination.

(4)The examination must not be conducted less than 7 days after the day on which the examination order is made, unless the court considers it appropriate for the examination to be conducted at an earlier time.

s 93W ins 2013 No. 21s 42

ch 2A pt 3 div 5 hdg ins 2013 No. 21s 42

ch 2A pt 3 div 5 sdiv 1 hdg ins 2013 No. 21s 42

93XCourt officer’s power to conduct examinations

(1)This section applies if a court officer conducts an examination under an examination order.

(2)The court officer constitutes, and may exercise all the jurisdiction and powers of, the court.

(3)However, the court officer may not exercise any power of the court to punish for contempt.

s 93X ins 2013 No. 21s 42

93YTime and place of examination

The examination of a person must be conducted at the time and place stated in the examination order.

s 93Y ins 2013 No. 21s 42

93ZExamination to take place in private

(1)The examination must take place in private.

(2)The court or court officer may give directions about who may be present during the examination, or during a part of it.

(3)The following people are entitled to be present at the examination—

(a)a lawyer of the person being examined;

(b)an appropriate officer;

(c)a commission officer;

(d)a police officer;

(e)a lawyer representing an appropriate officer, commission officer or police officer;

(f)any person who is entitled to be present because of a direction under subsection (2).

s 93Z ins 2013 No. 21s 42

93ZARole of the examinee’s lawyer

The lawyer of the person being examined may, at the times during the examination that the court or court officer decides—

(a)address the court or court officer about matters on which the person has been examined; and

(b)examine the person about matters on which the person has been examined.

s 93ZA ins 2013 No. 21s 42

93ZBRecording evidence

(1)The court or court officer must ensure that, if practicable, evidence given at an examination in Queensland is recorded under the Recording of Evidence Act 1962 or recorded in another way and authenticated by the court or court officer.

(2)Subsection (1) applies despite the Recording of Evidence Act 1962, section 5.

Note—

The Recording of Evidence Act 1962, section 5, requires evidence given in a legal proceeding to be recorded under that Act, subject to any direction given by the court in which, or judicial person before whom, the legal proceeding is being taken.

(3)The court or court officer must authenticate and sign any deposition or other recording.

(4)If evidence given at an examination is recorded in a deposition, it must—

(a)contain, in question and answer form, the evidence of the person examined; and

(b)be transcribed and read over by or to the person in the court’s or court officer’s presence and in the presence of the parties who wish to attend; and

(c)be signed by the person, or, if the person refuses to sign the deposition, by the court or court officer for the person.

(5)The court or court officer may impose on the person being examined the conditions (if any) that the court or court officer reasonably considers necessary to prevent improper disclosure of the record.

s 93ZB ins 2013 No. 21s 42

93ZCPrivilege—examination order

(1)A person examined under an examination order is not excused from answering a question, or from producing a document or other thing, on the ground that—

(a)answering the question or producing the document may tend to incriminate the person or make the person liable to a forfeiture or penalty; or

(b)producing the document would be in breach of an obligation, whether imposed by an enactment or otherwise, of the person not to disclose the existence or contents of the document; or

(c)answering the question or producing the document would disclose information that is the subject of legal professional privilege.

(2)A statement or disclosure made by a person in answer to a question asked in an examination under an examination order, or a document or other thing produced in the examination, is not admissible against the person in any civil or criminal proceeding, other than—

(a)a proceeding about the false or misleading nature of the statement or disclosure; or

(b)a proceeding on an application under this Act; or

(c)a proceeding for the enforcement of a confiscation order; or

(d)for a document or other thing, a proceeding about a right or liability it confers.

s 93ZC ins 2013 No. 21s 42

93ZDOffence to contravene examination order

A person who is required to attend an examination under an examination order under this part must not—

(a)fail to attend as required by the order, unless the person has a reasonable excuse; or

(b)fail to attend from day to day until the conclusion of the examination, unless the person has a reasonable excuse; or

(c)fail to take an oath for the purpose of the examination; or

(d)fail to answer a question that the person is directed to answer by the court or court officer; or

(e)make a statement in the examination that is false or misleading in a material particular.

Maximum penalty—100 penalty units or 2 years imprisonment.

s 93ZD ins 2013 No. 21s 42

93ZEUse and dissemination of examination information

(1)This section applies to a statement, disclosure, document or other thing mentioned in section 93ZC(2) (examination information).

(2)The DPP or the commission may give the examination information to—

(a)a corresponding entity to help the entity to obtain other evidence or other information (derived evidence) that may be relevant to the enforcement of a corresponding law; or

(b)an entity of the State, another State or the Commonwealth that has a function of investigating or prosecuting offences to help the entity to obtain other evidence or other information (also derived evidence) that may be relevant to the investigation or prosecution of an offence.

(3)The giving of examination information under subsection (2), its use to obtain derived evidence or the admissibility of the derived evidence in a proceeding, including a prosecution for an offence, is unaffected by—

(a)the fact that the examination information was obtained because of section 93ZC and subject to section 93Z; or

(b)any duty of confidentiality owed to the person from whom the examination information was obtained; or

(c)the objects of this Act or the particular purpose for which the examination information was obtained.

(4)In this section—

entity, of the State, another State or the Commonwealth, includes a law enforcement agency established under a law of the State, another State or the Commonwealth.

s 93ZE ins 2013 No. 21s 42

ch 2A pt 3 div 5 sdiv 2 hdg ins 2013 No. 21s 42

93ZFPrivilege—property particulars order

(1)A person directed under a property particulars order to give a statement to the commission is not excused from giving the statement or including particulars in the statement on the ground that the statement or particulars may tend to incriminate the person or make the person liable to a forfeiture or penalty.

(2)If a person gives a statement to the commission under a property particulars order, the statement is not admissible against the person in any criminal proceeding other than a proceeding about the false or misleading nature of the statement.

s 93ZF ins 2013 No. 21s 42

93ZGOffence to contravene property particulars order

A person directed under a property particulars order to give a statement to the commission within a stated period of time—

(a)must comply with the direction unless the person has a reasonable excuse; and

(b)must not make a statement that is false or misleading in a material particular.

Maximum penalty—100 penalty units or 2 years imprisonment.

s 93ZG ins 2013 No. 21s 42

ch 2A pt 3 div 5 sdiv 3 hdg ins 2013 No. 21s 42

93ZHIf property seizure order directed to commission officer

(1)This section applies if the Supreme Court makes a property seizure order that is directed to a commission officer.

(2)The order—

(a)is taken to be a search warrant issued by a Supreme Court judge under the Crime and Corruption Act 2001 in relation to confiscation related evidence as defined under that Act; and

(b)is taken to authorise a commission officer to exercise search warrant powers under the Crime and Corruption Act 2001, section 92, including search warrant powers mentioned in section 92(2) and (3) or stated in the order, to the extent necessary for giving effect to the order.

(3)Property seized under the order is taken to have been seized under the Crime and Corruption Act 2001.

(4)The Crime and Corruption Act 2001, section 93 applies to the order as if it were a search warrant.

(5)It is sufficient compliance with the Crime and Corruption Act 2001, section 93(1) for the commission officer to give the occupier of the place a copy of the order or, if the occupier of the place is not present, to leave the copy in a conspicuous place.

(6)The Crime and Corruption Act 2001, sections 113 and 114 do not apply to property seized under the order.

s 93ZH ins 2013 No. 21s 42

amd 2014 No. 21s 94(2)sch 2

93ZIIf property seizure order directed to police officer

(1)This section applies if the Supreme Court makes a property seizure order that is directed to a police officer.

(2)The order—

(a)is taken to be a search warrant issued by a Supreme Court judge under the Police Powers and Responsibilities Act 2000 in relation to confiscation related evidence as defined under that Act; and

(b)is taken to authorise a police officer to exercise search warrant powers under the Police Powers and Responsibilities Act 2000, section 157, including search warrant powers mentioned in section 157(2) and (3), to the extent necessary for giving effect to the order.

(3)Property seized under the order is taken to have been seized under the Police Powers and Responsibilities Act 2000.

(4)The Police Powers and Responsibilities Act 2000, section 158 applies to the order as if it were a search warrant.

(5)It is sufficient compliance with the Police Powers and Responsibilities Act 2000, section 158(1) for the police officer to give the occupier of the place a copy of the order or, if the occupier of the place is not present, to leave the copy in a conspicuous place.

Note—

The Police Powers and Responsibilities Act 2000 provisions about applications for the return of things in the possession of the police service generally do not apply to things seized under a property seizure order.

s 93ZI ins 2013 No. 21s 42

ch 2A pt 3 div 6 hdg ins 2013 No. 21s 42

93ZJNotice of restraining order and other orders

(1)This section applies if the Supreme Court—

(a)makes a restraining order; or

(b)makes another order under division 4 in relation to a restraining order.

(2)As soon as practicable after the order is made, the commission must give each person whose property is restrained under the order and anyone else who is affected by the order a copy of the order.

(3)However, the commission is not required to give a person whose property is restrained under a restraining order a copy of, or notice of, an investigation order made under section 93W(1)(a), (b) or (c) directed to another person.

(4)If the order directs the public trustee to take control of property, the commission must give the public trustee a copy of the order.

(5)However, if the application was made for the State by the commissioner of the police service, the commissioner of the police service—

(a)must give the commission a copy of the order; and

(b)must give the notice required to be given under subsection (2) or (4).

(6)A restraining order, or another order under division 4, does not stop having effect only because a person required to be given a copy of the order under subsection (2) has not been given a copy of the order.

s 93ZJ ins 2013 No. 21s 42

ch 2A pt 3 div 7 hdg ins 2013 No. 21s 42

ch 2A pt 3 div 7 sdiv 1 hdg ins 2013 No. 21s 42

93ZKSupreme Court may exclude prescribed respondent’s property from restraining order

(1)The prescribed respondent under the restraining order may apply to the Supreme Court to amend the order to exclude particular property of the prescribed respondent from the order.

(2)The prescribed respondent must give written notice of the making of the application, the grounds for the application and the facts relied on to the State and anyone else who has an interest in the property.

(3)The grounds for the application and the facts relied on must be stated fully in the notice.

(4)The State must be a party to the application.

(5)Anyone else who is given notice of the application may appear at the hearing of the application.

(6)If the State proposes to oppose the application, the State must give the applicant notice of intention to oppose the application.

(7)The State must give the applicant notice of the grounds for opposing the application.

(8)However—

(a)the State is not required to give the notice; and

(b)the application may not be heard;

until the DPP has had a reasonable opportunity to examine the applicant or a relevant person under an examination order, whether or not an examination order has already been made.

(9)In this section—

relevant person means a person other than the applicant who, on examination under an examination order, may be able to give evidence relevant to the application.

s 93ZK ins 2013 No. 21s 42

93ZLWhen Supreme Court may exclude prescribed respondent’s property

(1)The Supreme Court may exclude the prescribed respondent’s property from the restraining order if it is satisfied it is in the public interest to amend the order in the particular circumstances.

(2)The Supreme Court may require the prescribed respondent to give security satisfactory to the court to meet any liability that may be imposed on the prescribed respondent under this Act.

s 93ZL ins 2013 No. 21s 42

ch 2A pt 3 div 7 sdiv 2 hdg ins 2013 No. 21s 42

93ZMSupreme Court may exclude other property from restraining order

(1)If the Supreme Court makes a restraining order, a person other than the prescribed respondent (the applicant) whose property is restrained under the order may apply to the court to amend the order to exclude the applicant’s property from the order.

(2)The applicant must give written notice of the making of the application, the grounds for the application and the facts relied on to the State and anyone else who has an interest in the property.

(3)The grounds for the application and the facts relied on must be stated fully in the notice.

(4)The State must be a party to the application.

(5)Anyone else who is given notice of the application may appear at the hearing of the application.

(6)If the State proposes to oppose the application, the State must give the applicant notice of intention to oppose the application.

(7)The State must give the applicant notice of the grounds for opposing the application.

(8)However—

(a)the State is not required to give the notice; and

(b)the application may not be heard;

until the DPP has had a reasonable opportunity to examine the applicant or a relevant person under an examination order, whether or not an examination order has already been made.

(9)In this section—

relevant person means a person other than the applicant who, on examination under an examination order, may be able to give evidence relevant to the application.

s 93ZM ins 2013 No. 21s 42

93ZNWhen Supreme Court may exclude applicant’s property

(1)The Supreme Court may exclude the applicant’s property from the restraining order if it is satisfied that the property—

(a)is not under the effective control of the prescribed respondent; and

(b)is not a gift that was given to the applicant by the prescribed respondent within 6 years before the prescribed respondent was charged with the qualifying offence to which the restraining order relates.

(2)In addition, the Supreme Court may exclude the applicant’s property from the order if it is satisfied it is in the public interest to amend the order in the particular circumstances.

(3)The Supreme Court may require the applicant to give the undertakings about the applicant’s property the court considers appropriate.

s 93ZN ins 2013 No. 21s 42

ch 2A pt 3 div 8 hdg ins 2013 No. 21s 42

93ZOExtension of restraining order

(1)On the application of the State, the Supreme Court may extend the period for which a restraining order is to remain in force.

(2)The State must give notice of the application to—

(a)the prescribed respondent; and

(b)anyone else whose property is restrained under the restraining order; and

(c)anyone else the applicant considers may have an interest in the restrained property.

(3)A person given or entitled to be given notice under subsection (2) may appear at the hearing of the application.

s 93ZO ins 2013 No. 21s 42

ch 2A pt 3 div 9 hdg ins 2013 No. 21s 42

93ZPSupreme Court may order sale of restrained property

(1)This section applies to restrained property under a restraining order only if the State applies to the Supreme Court for a serious drug offender confiscation order against the prescribed respondent and the application has not been decided.

(2)The State may, when applying for the serious drug offender confiscation order or at a later time, apply to the Supreme Court for an order directing the public trustee to sell all or part of the restrained property (application property).

(3)The State must give notice of the application to each person who has an interest in the application property.

(4)The Supreme Court may make the order if the court is satisfied, on evidence of the public trustee or otherwise—

(a)the application property may deteriorate or lose value before the application for the serious drug offender confiscation order is decided; or

(b)the cost of controlling the application property would be more than the value of the property if it were disposed of after the making of a serious drug offender confiscation order.

(5)The proceeds of a sale under an order under this section are taken to be restrained under the restraining order applying to the application property.

s 93ZP ins 2013 No. 21s 42

ch 2A pt 3 div 10 hdg ins 2013 No. 21s 42

93ZQApplication to revoke restraining order

(1)A person whose property is the subject of a restraining order and who was not given notice of the application for the restraining order may apply to the Supreme Court to revoke the order.

(2)The application must be made within 28 days or, with the approval of the court, the further period of not more than 3 months, after the person is notified of the making of the restraining order.

(3)The applicant must give the State written notice of the making of the application and the grounds for the application.

(4)The restraining order remains in force until the court revokes the order or the order otherwise stops having effect.

(5)The State may present additional material to the court relating to the application to revoke the restraining order.

(6)After considering the application, the court may revoke the restraining order if satisfied, on the facts before the court, there would be no basis for making a restraining order in relation to the property.

s 93ZQ ins 2013 No. 21s 42

93ZRNotice of revocation of restraining order

(1)On the revocation of a restraining order under section 93ZQ, the State must give notice of the revocation to—

(a)each person whose property was restrained under the order, if known; and

(b)anyone else who was affected by the order.

(2)Subsection (1) does not require the State to notify the applicant for the revocation of the restraining order of the revocation of the order.

s 93ZR ins 2013 No. 21s 42

ch 2A pt 3 div 11 hdg ins 2013 No. 21s 42

93ZSRestraining order to be registered

(1)This section applies if a restraining order applies to property of a particular kind and a law, whether or not a law of the State, provides for the registration of title to, an interest in, or a charge over, property of that kind.

(2)On the application of the commission or the commissioner of the police service, the authority responsible for administering the law must record the particulars of the relevant restraining order in the register kept under the law.

(3)Subsection (2) applies even though a relevant document of title is not produced to a registrar or any other person.

(4)Unless the contrary is proved, a person who deals with property affected by a registered restraining order is taken to know of the restraining order.

(5)If the Land Title Act 1994 applies to the property, the commission or the commissioner of the police service may lodge, and the registrar of titles must register, a caveat over the property under that Act.

(6)As soon as practicable after the restraining order stops having effect in relation to the property—

(a)the commission or the commissioner of the police service must apply for cancellation of the record of the order; and

(b)the authority responsible for administering the relevant law must take the steps necessary to cancel the record.

(7)Also, if the commission or the commissioner of the police service lodged a caveat over the property under subsection (5), as soon as practicable after the relevant restraining order stops having effect in relation to the property, the commission or the commissioner of the police service must withdraw the caveat.

s 93ZS ins 2013 No. 21s 42

93ZT Contravention of restraining order

(1)A person who does, or attempts to do, an act or makes an omission in relation to restrained property in contravention of a restraining order commits a crime.

Maximum penalty—

(a)for a financial institution—2500 penalty units or the value of the restrained property, whichever is the higher amount; or

(b)otherwise—

(i)1000 penalty units or the value of the restrained property, whichever is the higher amount; or

(ii)7 years imprisonment.

(2)It is a defence to a charge of an offence against subsection (1) for the person to prove that the person had no notice the property was restrained under a restraining order and no reason to suspect it was.

(3)However, the defence under subsection (2) is not available to the extent the restrained property is—

(a)a motor vehicle, boat or outboard motor the subject of a restraining order registered under the Personal Property Securities Act 2009 (Cwlth); or

(b)land over which a caveat in relation to the restraining order is registered under the Land Title Act 1994.

Note—

See section 93ZS(5) for the obligation of the registrar of titles to register the caveat.

(4)Subsection (1) does not prevent the prosecution and punishment of a person who does, or attempts to do, an act or makes an omission mentioned in that subsection for contempt of court or another offence under this Act or another Act.

(5)A dealing with property in contravention of subsection (1) is void unless the dealing was in favour of a person who—

(a)did not know, and could not reasonably be expected to have known, that the property was restrained under a restraining order; and

(b)acted in good faith; and

(c)provided sufficient consideration for the dealing.

(6)Subsection (5) applies whether or not any person is convicted of an offence in relation to the restraining order.

s 93ZT ins 2013 No. 21 s 42

sub 2017 No. 6 s 16

93ZURestraining order does not prevent other action under this Act

A restraining order does not prevent the enforcement of any other order made under this Act against restrained property under the restraining order.

s 93ZU ins 2013 No. 21s 42

93ZVEffect of dismissal of particular applications on restraining order

(1)This section applies if, while a restraining order is in force—

(a)the Supreme Court dismisses an application for a serious drug offender confiscation order based on the qualifying offence to which the restraining order relates; or

(b)the charge for the qualifying offence is withdrawn or dismissed.

(2)The Supreme Court may—

(a)if the court considers it appropriate, make an order extending the operation of the restraining order for a stated period or in stated circumstances; or

(b)make another order the court considers appropriate about the operation of the restraining order.

(3)An order under subsection (2) may be made to take effect immediately, at a stated time, or when a stated event happens.

s 93ZV ins 2013 No. 21s 42

93ZWAuthority under restraining order

A restraining order is sufficient authority for a person to whom the order is directed to take all steps necessary or desirable to give effect to the order.

s 93ZW ins 2013 No. 21s 42

ch 2A pt 4 hdg ins 2013 No. 21s 42

ch 2A pt 4 div 1 hdg ins 2013 No. 21s 42

93ZXDefinition for pt 4

In this part—

prescribed respondent see section 93ZZ(1).

s 93ZX ins 2013 No. 21s 42

93ZYMeaning of serious drug offender confiscation order

(1)

A serious drug offender confiscation order is an order that forfeits to the State—

(a)all property, other than protected property, of the prescribed respondent; and

(b)all property that was a gift given by the prescribed respondent to someone else within 6 years before the prescribed respondent was charged with the qualifying offence on which the order is based.

(2)Despite subsection (1), property is not forfeited if it has been acquired by a person for sufficient consideration, without knowing, and in circumstances not likely to arouse a reasonable suspicion, that the prescribed respondent has committed a category A offence, category B offence or category C offence.

(3)This section applies subject to sections 11, 93ZZC and 93ZZF.

(4)For this Act, the property forfeited under the order is the property that is the subject of the order.

s 93ZY ins 2013 No. 21s 42

ch 2A pt 4 div 2 hdg ins 2013 No. 21s 42

93ZZApplication for serious drug offender confiscation order

(1)This section applies if—

(a)a person (the prescribed respondent) is convicted of a qualifying offence; and

(b)a serious drug offence certificate for the qualifying offence has been issued and has not been cancelled.

(2)The State may apply to the Supreme Court for a serious drug offender confiscation order against the prescribed respondent.

(3)The application must be made within 6 months after the issue of the serious drug offence certificate for the qualifying offence.

(4)The application must not be set down for hearing less than 28 days after the filing of the application.

(5)The commission or, if the application is made for the State by a police officer, the commissioner of the police service must give reasonable notice of the application to—

(a)the prescribed respondent; and

(b)anyone else who the commission or the commissioner of the police service reasonably suspects has an interest in the property that is likely to become the subject of the order sought.

(6)A person given notice under subsection (5) may appear at the hearing of the application.

(7)The absence of a person required to be given notice of the application does not prevent the Supreme Court from making a serious drug offender confiscation order.

(8)The application must include particulars of any encumbrance over property that an appropriate officer considers is likely to become the subject of the order.

(9)The application must state that a response to the application may be filed under section 93ZZA.

s 93ZZ ins 2013 No. 21s 42

93ZZA Response by prescribed respondent

(1)The prescribed respondent may file a response to the application under section 93ZZ.

(2)The response must state—

(a)details of any property the prescribed respondent believes is protected property; and

(b)the reasons why the prescribed respondent believes the property is protected property; and

(c)details of any public interest considerations the prescribed respondent will ask the court to take into account.

(3)The prescribed respondent must file the response in the Supreme Court and give a copy of it to the State at least 14 days before the hearing date of the application.

(4)The response must be accompanied by any affidavit the prescribed respondent intends to rely on at the hearing of the application.

s 93ZZA ins 2013 No. 21s 42

ch 2A pt 4 div 3 hdg ins 2013 No. 21s 42

93ZZB Making of serious drug offender confiscation order

(1)Subject to subsection (3), the Supreme Court must make a serious drug offender confiscation order against the prescribed respondent if the court is satisfied—

(a)the prescribed respondent has been convicted of a qualifying offence for which a serious drug offence certificate has been issued and has not been cancelled; and

(b)the application for the order was made within 6 months after the issue of the certificate.

(2)However, the court may refuse to make the serious drug offender confiscation order if the court is satisfied it is not in the public interest to make the order.

(3)If a proceeds assessment order, unexplained wealth order or pecuniary penalty order has been made on the basis of illegal activity constituting the qualifying offence, a serious drug offender confiscation order can not be made on the basis of the qualifying offence.

Example—

Assume a person has been convicted of the qualifying offence of trafficking in dangerous drugs and the Supreme Court has made an unexplained wealth order against the person because the court was satisfied there was a reasonable suspicion, based on the person’s conviction, that the person had engaged in at least 1 serious crime related activity. The court may not make a serious drug offender confiscation order against the person based on the same conviction.

(4)Subsection (3) does not limit the value of the property that may be forfeited to the State under a serious drug offender confiscation order.

(5)The court may make the ancillary orders the court considers appropriate when it makes the serious drug offender confiscation order.

Example—

ancillary orders facilitating the transfer of forfeited property to the State

(6)The serious drug offender confiscation order must contain a list of all property the court has found—

(a)is subject to the order and is forfeited to the State; or

(b)is protected property and is not forfeited to the State.

(7)Subsection (6) does not limit the property that is forfeited under section 93ZZF or is protected property.

s 93ZZB ins 2013 No. 21s 42

amd 2017 No. 6 s 17

93ZZC Particular property forfeited only if listed in serious drug offender confiscation order

(1)The following property is forfeited under the serious drug offender confiscation order only if it is listed in the order—

(a)property of a person other than the prescribed respondent that is under the effective control of the prescribed respondent;

(b)property mentioned in section 93ZY(1)(b).

(2)As part of an application under section 93ZZ, the State may ask the court to decide that particular property is property mentioned in subsection (1)(a) or (b).

(3)If the court is satisfied the property is property mentioned in subsection (1)(a) or (b), the court must list the property in the serious drug offender confiscation order.

(4)The serious drug offender confiscation order may be enforced against the property to the extent stated in the order.

s 93ZZC ins 2013 No. 21s 42

93ZZD Serious drug offender confiscation order may provide for discharge of encumbrance

(1)This section applies if—

(a)the court is satisfied an encumbrancee took an encumbrance over property to be forfeited under a serious drug offender confiscation order—

(i)in good faith; and

(ii)for valuable consideration; and

(iii)in the ordinary course of the encumbrancee’s business; and

(b)the State gives an undertaking to apply the proceeds of disposing of the forfeited property towards discharging the encumbrance.

(2)The court may make the orders about the encumbrance the court considers appropriate.

(3)The commission or, if the application is made by a police officer, the commissioner of the police service may give the undertaking for the State.

s 93ZZD ins 2013 No. 21s 42

93ZZE Notice of serious drug offender confiscation order

(1)Within 28 days after a serious drug offender confiscation order is made, the commission or, if the application for the order was made by a police officer, the commissioner of the police service must give the following persons the documents mentioned in subsection (2)—

(a)all known dependants of the person against whom the order is made;

(b)each person the commission or the commissioner of the police service considers may have had an interest in the property the subject of the order immediately before the property was vested in the State under section 93ZZF.

(2)For subsection (1), the documents are—

(a)a copy of the serious drug offender confiscation order; and

(b)a written notice stating that a dependant of the person against whom the order is made may apply to the Supreme Court, within 3 months after the day the order is made, for a hardship order under section 93ZZO.

(3)If required by the court, the commission or the commissioner of the police service must also give notice of the making of the order to the persons the court considers appropriate, in the way and within the time the court considers appropriate.

s 93ZZE ins 2013 No. 21s 42

93ZZF Effect of serious drug offender confiscation order

(1)On the making of a serious drug offender confiscation order, the property the subject of the order—

(a)is forfeited to the State; and

(b)vests absolutely in the State.

(2)However, the Supreme Court may exclude property that would otherwise be forfeited if the court is satisfied it is not in the public interest to include the property in the order.

(3)Subsection (1)(b) is subject to the provisions of this Act under which the Supreme Court may make orders about the property vested or to be vested in the State.

(4)The Supreme Court may give any necessary or convenient directions for giving effect to the forfeiture.

Example—

If the person forfeiting the property is in possession of it, the court may give directions about who is to have possession of the property.

s 93ZZF ins 2013 No. 21s 42

93ZZG Forfeited property not to be disposed of during hardship order period

(1)During the hardship order period, the State must not, without the leave of the Supreme Court—

(a)dispose of property forfeited to the State under a serious drug offender confiscation order; or

(b)authorise anyone else to dispose of the property mentioned in paragraph (a).

(2)This section does not limit section 213.

(3)In this section—

hardship order period means the later of the following periods to end—

(a)3 months after the serious drug offender confiscation order is made;

(b)the period ending when all proceedings relating to hardship orders are finally decided.

s 93ZZG ins 2013 No. 21s 42

93ZZH Dealing with property forfeited under serious drug offender confiscation order prohibited

(1)A person who does, or attempts to do, an act or makes an omission in relation to property forfeited under a serious drug offender confiscation order that directly or indirectly defeats the operation of the order commits a crime.

Maximum penalty—

(a)for a financial institution—2500 penalty units or the value of the forfeited property, whichever is the higher amount; or

(b)otherwise—

(i)1000 penalty units or the value of the forfeited property, whichever is the higher amount; or

(ii)7 years imprisonment.

(2)It is a defence to a charge of an offence against subsection (1) for the person to prove that the person had no notice the property was forfeited under a serious drug offender confiscation order and no reason to suspect it was.

(3)However, the defence under subsection (2) is not available to the extent the property is—

(a)a motor vehicle, boat or outboard motor the subject of a serious drug offender confiscation order registered under the Personal Property Securities Act 2009 (Cwlth); or

(b)land over which a caveat in relation to the serious drug offender confiscation order is registered under the Land Title Act 1994.

(4)Subsection (1) does not prevent the prosecution and punishment of a person who does, or attempts to do, an act or makes an omission mentioned in that subsection for contempt of court or another offence under this Act or another Act.

(5)A dealing with property in contravention of subsection (1) is void unless the dealing was in favour of a person who—

(a)did not know, and could not reasonably be expected to have known, that the property was the subject of a serious drug offender confiscation order; and

(b)acted in good faith; and

(c)provided sufficient consideration for the dealing.

(6)Subsection (5) applies whether or not any person is convicted of an offence in relation to the serious drug offender confiscation order.

s 93ZZH ins 2013 No. 21 s 42

sub 2017 No. 6 s 18

93ZZI Effect of death

(1)If a serious drug offender confiscation order is made against a deceased, the order has effect before final distribution of the estate as if the person had died the day after the making of the order.

(2)A notice authorised or required to be given under this chapter to a person who is dead is taken to have been given if it is given to the person’s legal personal representative.

(3)A reference in this chapter to an interest in property of a person who is dead is a reference to an interest in the property the person had immediately before death.

(4)An order may be applied for and made under this chapter—

(a)in relation to a person’s interest in property even if the person is dead; and

(b)on the basis of the previous activities of a person who is dead.

s 93ZZI ins 2013 No. 21s 42

93ZZJ Effect of death of joint owner of restrained property

(1)This section applies only if a person who is a joint owner of restrained property under a restraining order dies while the restraining order is in force.

(2)The death of the person does not, while the order is in force, operate to vest the deceased’s interest in the surviving joint owner or owners.

(3)Also, the restraining order continues to apply to the interest as if the person had not died.

(4)A serious drug offender confiscation order applying to the interest applies as if the order took effect immediately before the person died.

(5)If a restraining order stops applying to property without a serious drug offender confiscation order being made in relation to the property, subsection (2) is taken not to have applied to the property.

s 93ZZJ ins 2013 No. 21s 42

93ZZK Effect of appeal against conviction

(1)If an appeal is started against the conviction of a person of a qualifying offence or pre-qualifying offence—

(a)an application for a serious drug offender confiscation order may still be made under section 93ZZ; and

(b)section 93ZZ(3) must be complied with.

(2)However, the court must adjourn the proceeding for the serious drug offender confiscation order until the appeal is decided or otherwise ends.

Note—

In relation to the discharge of a serious drug offender confiscation order, see division 5. In relation to consent orders, see section 256A.

s 93ZZK ins 2013 No. 21s 42

93ZZL Effect of amendment of serious drug offence certificate after serious drug offender confiscation order made

(1)This section applies if, after a serious drug offender confiscation order is made, the serious drug offence certificate for the qualifying offence or a pre-qualifying offence on which the order is based is amended under the Penalties and Sentences Act 1992, section 161I or 161J.

Note—

If the serious drug offence certificate is amended under the Penalties and Sentences Act 1992, section 161K, the serious drug offender confiscation order is discharged under division 5.

(2)The validity of the serious drug offender confiscation order is not affected.

s 93ZZL ins 2013 No. 21s 42

93ZZM Ch 2A restraining order does not prevent making of ch 2 or 3 restraining order

(1)The making of a restraining order under this chapter on the basis of a person being, or about to be, charged with or convicted of a qualifying offence does not prevent the making of a restraining order under chapter 2 or chapter 3 on the basis of the illegal activity that constitutes the qualifying offence.

(2)This section does not limit section 257.

s 93ZZM ins 2013 No. 21s 42

93ZZN Restriction on orders if serious drug offender confiscation order is applied for or made

(1)Subsection (3) applies if an application for a serious drug offender confiscation order against a person is dismissed, struck out or otherwise disposed of by the court without the order being made, except if the application is dismissed because the conviction of the person of the qualifying offence or a pre-qualifying offence on which the application is based is quashed on appeal.

(2)For the removal of doubt, it is declared that subsection (3) does not apply if the application is withdrawn.

(3)The State can not apply for another order under this Act on the basis of the illegal activity constituting the qualifying offence that was the basis of the application, other than an order under chapter 3, part 3, 4 or 7.

(4)If a serious drug offender confiscation order is made on the basis of the conviction of a person of a qualifying offence, no other order may be made under this Act on the basis of the illegal activity constituting the qualifying offence.

s 93ZZN ins 2013 No. 21s 42

ch 2A pt 4 div 4 hdg ins 2013 No. 21s 42

93ZZO Application for hardship order

(1)A dependant of the person against whom the serious drug offender confiscation order is made may apply to the Supreme Court for a hardship order.

(2)Unless the court gives leave under section 93ZZP, the application must be made within 3 months after the day the serious drug offender confiscation order is made.

(3)For each application under this section, including an application for leave, the applicant must give the State and anyone else who has an interest in the property the subject of the order written notice of—

(a)the making of the application; and

(b)the grounds for the application, including, for an application for a hardship order, a description of the property the subject of the serious drug offender confiscation order that the application relates to; and

(c)the facts relied on.

(4)The grounds for the application and the facts relied on must be stated fully in the notice.

(5)The notice must be given at least 28 days before the day set for hearing the application.

(6)The written notice must be accompanied by any affidavit the applicant intends to rely on at the hearing of the application.

(7)The State must be a party to the application.

(8)Anyone else who is given notice of the application may appear at the hearing of the application.

(9)If the State proposes to oppose the application, the State must give the applicant notice of intention to oppose the application.

(10)The State must give the applicant notice of the grounds for opposing the application.

s 93ZZO ins 2013 No. 21s 42

93ZZP When Supreme Court may give leave for s 93ZZO

The Supreme Court may give leave to apply for a hardship order after the end of the period mentioned in section 93ZZO(2) if it is satisfied the delay in applying was not because of the applicant’s neglect.

s 93ZZP ins 2013 No. 21s 42

93ZZQ Making of hardship order

(1)The Supreme Court may, on an application under section 93ZZO, make an order mentioned in section 93ZZR(1) (a hardship order) in relation to special property if it is satisfied—

(a)the applicant is a dependant of the person against whom the serious drug offender confiscation order was made; and

(b)the operation of the serious drug offender confiscation order will cause hardship to the dependant.

(2)However, the court must not make a hardship order in favour of an adult dependant of the person against whom the serious drug offender confiscation order was made unless the court is satisfied the dependant had no knowledge of the relevant qualifying offence or a relevant pre-qualifying offence.

(3)In this section—

relevant, in relation to a qualifying offence or pre-qualifying offence, means the qualifying offence or a pre-qualifying offence on the basis of which the serious drug offender confiscation order was made.

special property means—

(a)any property, if the last change of ownership resulted from the death of someone other than the person against whom the serious drug offender confiscation order was made; or

Example—

property given under a will

(b)property that is or was the dependant’s principal place of residence, if—

(i)the last change of ownership of the property was at least 6 years before the relevant qualifying offence was committed; and

(ii)the property was occupied by the dependant as his or her principal place of residence for a consecutive period of 2 years during the 6-year period mentioned in subparagraph (i).

(4)For subsection (3), if an offence has been committed over a period of time, the date of commission of the offence is the date the person started committing the offence.

s 93ZZQ ins 2013 No. 21s 42

93ZZR Hardship orders court may make

(1)Subject to subsection (2), the court may make any of the following hardship orders—

(a)if the special property is still vested in the State—an order—

(i)directing the State to transfer the property to the dependant; or

(ii)directing the State to sell the property and pay an amount to the dependant from the proceeds of sale;

(b)if the special property is no longer vested in the State—an order directing the State to pay to the dependant the value of the special property or a lesser amount.

(2)The court may only make a hardship order the court considers is necessary to prevent hardship to the dependant.

(3)If the dependant is under 18 years, the court may also make an ancillary order the court considers necessary for ensuring the proper transfer of property, or application of an amount to be paid, to the dependant.

(4)In this section—

special property see section 93ZZQ.

s 93ZZR ins 2013 No. 21s 42

ch 2A pt 4 div 5 hdg ins 2013 No. 21s 42

93ZZS Circumstances in which serious drug offender confiscation order is discharged

A serious drug offender confiscation order made against a person is discharged if—

(a)the person’s conviction of the qualifying offence or a pre-qualifying offence on which the order is based is quashed; or

(b)the order is discharged on appeal; or

(c)the order was based on a qualifying offence or a pre-qualifying offence that was a category B offence or category C offence and, following an appeal, the offence is no longer either a category B offence or a category C offence.

s 93ZZS ins 2013 No. 21s 42

93ZZT Notice after discharge of serious drug offender confiscation order

(1)This section applies if a relevant event happens.

(2)As soon as practicable after the relevant event happens, the commission must give notice of the happening of the relevant event to each person the commission considers may have had an interest in the property vested in the State under the serious drug offender confiscation order immediately before it was vested in the State.

(3)If required by the Supreme Court, the commission must also give notice of the happening of the relevant event to the persons the court considers appropriate, in the way and within the time the court considers appropriate.

(4)If the property is still vested in the State, the notice must include a statement to the effect that a person who had an interest in the property immediately before the property was vested in the State may, by written notice given to the Attorney-General, ask for the return of the property.

(5)If the property is no longer vested in the State, the notice must include a statement to the effect that a person who had an interest in the property immediately before the property was vested in the State may apply to the Supreme Court for an order declaring the value of the property.

(6)In this section—

relevant event means an event mentioned in section 93ZZS.

s 93ZZT ins 2013 No. 21s 42

93ZZU Request for Attorney-General to return property

(1)This section applies if a person is given a notice under section 93ZZT relating to property that is still vested in the State.

(2)The person may, in writing, ask the Attorney-General to return the property to the person.

(3)As soon as practicable after receiving the notice, the Attorney-General must arrange for the property to be transferred to the applicant or someone else nominated by the applicant.

(4)The Attorney-General may do or authorise the doing of anything necessary or convenient to be done for the transfer.

s 93ZZU ins 2013 No. 21s 42

93ZZV Application for order declaring value of property

(1)This section applies if a person is given a notice under section 93ZZT relating to property that is no longer vested in the State.

(2)The person may apply to the Supreme Court for an order declaring the value of the forfeited property.

(3)The court must make an order declaring the value, at the time of the declaration, of the property.

(4)The court may make the other orders the court considers appropriate.

(5)After the court makes the order, the applicant for the order may, in writing, ask the Attorney-General for payment of the amount declared by the order to be the value of the property.

(6)The Attorney-General must arrange for payment to the applicant, or someone else nominated by the applicant, of the amount declared by the order.

s 93ZZV ins 2013 No. 21s 42

94Explanation of ch 3

(1)This chapter enables proceedings to be started against a person to recover property and benefits derived from, and anything used for, or in the commission of, a confiscation offence, after the person has been charged with or convicted of the offence.

(2)It does this by enabling a court, as a preliminary step in appropriate cases, to make a restraining order preventing the property being dealt with without the court’s leave.

(3)It also empowers the court to forfeit the following property to the State—

(a)property used, or intended to be used, in or for the commission of a confiscation offence;

(b)property derived from property mentioned in paragraph (a) or from the commission of a confiscation offence.

Note—

For matters that the court is to consider in deciding whether to forfeit property mentioned in paragraph (a), see section 151(2).

(4)In addition, it provides a mechanism for—

(a)preventing the disposal or concealment of property and benefits derived from the commission of a confiscation offence; and

(b)depriving persons who have directly or indirectly benefited from the commission of a confiscation offence of the benefits derived from the offence.

95Application of ch 3

(1)This chapter applies in relation to—

(a)a confiscation offence committed or suspected of having been committed at any time, whether before or after the commencement of this Act; and

(b)a person’s conviction of a confiscation offence at any time, whether before or after the commencement of this Act.

(2)Subsection (1) applies subject to section 96.

96Matters ch 3 does not apply to

(1)This chapter does not apply to a person’s conviction of an offence if the person was convicted of the offence before 12 May 1989.

(2)Subsection (1) does not apply to interstate forfeiture orders, interstate pecuniary penalty orders or interstate restraining orders.

97Application may be made for more than 1 order

Nothing in this chapter prevents a court hearing and deciding at the same time—

(a)an application for a forfeiture order or pecuniary penalty order; and

(b)an application under a Commonwealth law that makes provision substantially similar to this chapter.

98Constitution of court

(1)This section applies—

(a)if an application for a forfeiture order, pecuniary penalty order or restraining order is made to a court before which a person was convicted of a confiscation offence; and

(b)whether or not the court is constituted in the same way as it was constituted when the person was convicted of the offence.

(2)The court—

(a)may deal with the application; and

(b)may perform any function and exercise any power in relation to the forfeiture order, pecuniary penalty order or restraining order, that the court may perform or exercise under this Act.

99Meaning of confiscation offence

An offence is a confiscation offence if it is—

(a)a serious criminal offence; or

(b)another indictable offence, whether dealt with on indictment or summarily; or

(c)an offence against this Act for which an offender is liable to imprisonment; or

(d)an offence against an Act or a provision specified in schedule 2, part 2; or

(e)another offence prescribed under a regulation as a confiscation offence.

Note—

This definition applies to the whole Act. See the dictionary.

100Meaning of serious criminal offence

Serious criminal offence has the same meaning as in section 17.

101Meaning of benefit

Benefit includes service and advantage.

102Meaning of benefit derived

A benefit derived by a person includes a benefit derived by someone else at the person’s request or direction.

103Meaning of effective control

(1)

Effective control of property has the same meaning as in section 20.

Note—

The definition of property is given by the Acts Interpretation Act 1954, schedule 1.

(2)For subsection (1), a reference in section 20 to chapter 2 is taken to be a reference to this chapter.

s 103 amd 2009 No. 2s 33; 2013 No. 39s 110(1)sch 3pt 1

104Meaning of tainted property

(1)

Tainted property, for a confiscation offence, means—

(a)property used, or intended to be used, by a person in, or in connection with, the commission of the offence; or

(b)property or another benefit derived by a person from property mentioned in paragraph (a); or

(c)property or another benefit derived by a person from the commission of the offence; or

(d)if the offence is money laundering, property mentioned in section 250(2)(a); or

(e)if the offence is against section 252(1), property mentioned in that subsection.

(2)Property mentioned in subsection (1)(a) includes property the use of which is, or the intended use of which would be, all or part of the confiscation offence.

(3)Subsection (1)(d) and (e)—

(a)do not limit subsection (1)(a) to (c); and

(b)apply even though an act done in relation to the property is all or part of the confiscation offence.

(4)If the confiscation offence is conspiracy to commit a confiscation offence, the references to the confiscation offence in subsection (1)(a) and (c) are taken to include a reference to the confiscation offence the subject of the conspiracy.

Note—

An offence may be a conspiracy to commit a confiscation offence if it is an ancillary offence to a serious criminal offence, or another indictable offence that is a conspiracy to commit a crime under the Criminal Code, section 541.

(5)For part 3, property mentioned in subsection (1) includes benefits that the prescribed respondent has derived, is deriving, or is to derive, under a contract formed on or after 12 May 1989 about either of the following—

(a)a depiction of a confiscation offence or alleged confiscation offence in a movie, book, newspaper, magazine, radio, or television production, or in any other electronic form, or live or recorded entertainment of any kind;

(b)an expression of the prescribed respondent’s thoughts, opinions or emotions about a confiscation offence.

s 104 amd 2004 No. 43s 37

105Meaning of charge if complaint made

(1)This section applies if a proceeding for an offence is started against a person—

(a)by complaint and summons under the Justices Act 1886; or

(b)by notice to appear under the Police Powers and Responsibilities Act 2000.

(2)If the complaint is sworn, the person is charged when the complaint is made whether or not a justice has issued on the complaint—

(a)a summons requiring the person’s attendance before a court; or

(b)a warrant for the person’s arrest.

(3)If the complaint is not sworn, the person is charged when the summons is served on the person.

(4)If the proceeding is started by notice to appear, the person is charged when the notice to appear is issued and served on the person.

106Meaning of convicted of offence

(1)A person must be treated as if convicted of an offence if—

(a)the person is found guilty of the offence, whether or not a conviction is recorded; or

(b)the offence is taken into account by a court in sentencing the person for another offence; or

(c)the person becomes unamenable to justice for the offence; or

(d)the person is acquitted of the offence because of unsoundness of mind.

(2)However, if a person is treated as if convicted of a confiscation offence because—

(a)the person is unamenable to justice for the offence; or

(b)the person is acquitted of the offence because of unsoundness of mind;

a court may rely on the person being so treated to make a forfeiture order, pecuniary penalty order or special forfeiture order only if it is satisfied that, apart from paragraph (a) or (b), the evidence is of sufficient weight to support a conviction of the person for the offence.

107Meaning of quash a conviction

(1)

Quash includes set aside and rescind.

Editor’s note—

This definition covers various expressions used in the Criminal Code, section 668E (Determination of appeal in ordinary cases) and the Justices Act 1886, section 225 (Powers of judge on hearing appeal).

(2)Also, a person’s conviction is taken to be quashed if—

(a)for a conviction because a person is found guilty of an offence, whether or not a conviction is recorded, the conviction is quashed by a court or a free pardon is granted by the Governor; or

(b)for a conviction because an offence is taken into account by a court in sentencing the person for another offence—

(i)the person’s conviction of the other offence is quashed; or

(ii)the court’s decision to take the offence into account is quashed by a court; or

(c)for a conviction because a person has become unamenable to justice, the person is afterwards brought before a court to be dealt with for the offence and—

(i)the proceeding is discontinued; or

(ii)the person is acquitted; or

(iii)the person is convicted, but the conviction is afterwards quashed by a court or a free pardon is granted by the Governor; or

(iv)the offence is taken into account by a court in sentencing the person for another offence, but the person’s conviction of the other offence is quashed; or

(v)the offence is taken into account by a court in sentencing the person for another offence, but the court’s decision to take the offence into account is quashed by a court; or

(vi)for a conviction because a person is acquitted of an offence because of unsoundness of mind, the acquittal because of unsoundness of mind is quashed by a court.

108Meaning of related offence

An offence is related to another offence if both offences consist substantially of the same acts or omissions or form part of the same series of acts or omissions.

109Meaning of unamenable to justice

(1)A person becomes unamenable to justice for an offence only if—

(a)a proceeding for the offence is started against the person in a way mentioned in subsection (2); and

(b)the person is taken to become unamenable to justice under any of sections 110 to 115.

(2)For subsection (1), a proceeding for an offence starts when—

(a)a person is charged as defined in section 105; or

(b)a Magistrates Court charges the person with the offence or commits the person for trial or sentence for the offence; or

(c)an indictment is presented against the person for the offence.

Note—

This definition applies to the whole Act. See the dictionary.

110Unamenable to justice if person absconds

(1)The person is taken to become unamenable to justice if any of the following decides the person has absconded from the proceeding for the offence—

(a)the Supreme Court;

(b)the court to which the person is committed for trial or sentence;

(c)the court in which the proceeding is waiting to be heard, or being heard.

(2)The person is taken to become unamenable to justice when the court decides the person has absconded or on another day decided by the court.

111Unamenable to justice if person dead

(1)The person is taken to become unamenable to justice if the person dies before the proceeding for the offence is finally decided.

(2)The person is taken to become unamenable to justice when the person dies.

112Unamenable to justice if person not fit for trial

(1)The person is taken to become unamenable to justice if—

(a)under the Mental Health Act 2016, chapter 5, part 3, the person is found to be not fit for trial on the charge of the offence; and

(b)the proceeding for the offence is discontinued because of the finding.

(2)The person is taken to become unamenable to justice when the proceeding is discontinued.

s 112 amd 2016 No. 5 s 923 sch 4

113Unamenable to justice if warrant issued but not executed

(1)The person is taken to become unamenable to justice if—

(a)a warrant is issued for the arrest of the person for the offence, whether because of a complaint and summons or otherwise; and

(b)the warrant has not been executed within 6 months after its issue even though all reasonable steps have been taken to execute it.

(2)The person is taken to be unamenable to justice at the end of the last day of the 6 months mentioned in subsection (1)(b).

(3)In this section—

arrest includes apprehension.

114Unamenable to justice if no extradition order at end of extradition proceeding

(1)The person is taken to become unamenable to justice if—

(a)6 months after the proceeding for the offence is started the person is unamenable to justice because the person is outside Australia; and

(b)an extradition proceeding against the person for the offence has been started; and

(c)the extradition proceeding ends without an extradition order being made.

(2)The person is taken to be unamenable to justice when the extradition proceeding ends.

115Unamenable to justice for another reason

(1)The person is taken to become unamenable to justice if, 6 months after the proceeding for the offence is started—

(a)the person is unamenable to justice for another reason; and

(b)if the person is outside Australia, there is no extradition proceeding pending against the person.

(2)The person is taken to be unamenable to justice at the end of the last day of the 6 months mentioned in subsection (1).

116Definitions for pt 3

In this part—

prescribed respondent means a person who—

(a)is about to be, or has been, charged with the confiscation offence to which an application for a restraining order, or a restraining order relates; or

(b)has been convicted of the confiscation offence to which an application for a restraining order, or a restraining order relates.

relevant offence means the confiscation offence or confiscation offences to which an application for a restraining order, or a restraining order, under this part relates.

117Application for restraining order

(1)The State may apply to the Supreme Court for an order (restraining order) restraining any person from dealing with property stated in the order (the restrained property) other than in a stated way or in stated circumstances.

(2)If the application is made in urgent circumstances or the prescribed respondent is about to be charged with a relevant offence, the application may be made without notice to the prescribed respondent or another person to whom it relates.

(3)The application must be supported by an affidavit of a police officer.

(4)The application may relate to all or any of the following property—

(a)for property of a prescribed respondent—

(i)stated property; or

(ii)a stated class of property; or

(iii)all property; or

(iv)all property other than stated property; or

(v)all or stated property acquired after the restraining order is made;

(b)stated property, or a stated class of property, of a stated person, other than a prescribed respondent.

(5)The court may refuse to consider the application until the applicant gives the court all the information the court requires about the application in the way the court requires.

Example—

The court may require additional information supporting the application to be given by affidavit or statutory declaration.

118Affidavit—general requirements

The police officer’s affidavit must state the following—

(a)the confiscation offence on which the application is based;

(b)if the confiscation offence is not a major drug offence and the police officer suspects the relevant property is the prescribed respondent’s property, the police officer suspects—

(i)the property is tainted property and the reason for the suspicion; or

(ii)the prescribed respondent derived a benefit from the commission of the offence and the reason for the suspicion;

(c)if the basis of the application is the conviction of the prescribed respondent of the confiscation offence, details of the conviction;

(d)if the basis of the application is the fact that the prescribed respondent has been or is about to be charged with the confiscation offence, the police officer suspects the prescribed respondent committed the offence and the reason for the suspicion;

(e)details of the property sought to be restrained;

(f)the police officer suspects the property sought to be restrained is the property of the person mentioned in the affidavit and the reason for the suspicion.

s 118 amd 2013 No. 21s 43

119Particular requirements for affidavit relating to relevant property that is not prescribed respondent’s property

(1)This section applies only if a police officer’s affidavit relates to property of someone other than the prescribed respondent.

(2)This section is in addition to section 118.

(3)If the relevant offence is a major drug offence, the police officer’s affidavit must state—

(a)the police officer suspects that the property is tainted property and the reason for the suspicion; or

(b)the police officer suspects that the property is under the prescribed respondent’s effective control and the reason for the suspicion.

(4)If the relevant offence is not a major drug offence, the police officer’s affidavit must state—

(a)the police officer suspects that the property is tainted property and the reason for the suspicion; or

(b)the police officer—

(i)suspects that the property is under the prescribed respondent’s effective control; and

(ii)suspects that the prescribed respondent derived a benefit from the commission of the offence; and

(iii)the reason for the suspicion.

s 119 amd 2013 No. 21s 44

120Notice of application for restraining order

Subject to section 121(2), the State must give notice of the application to each person whose property is the subject of the application and anyone else the appropriate officer making the application for the State considers has an interest in the property.

Note—

Under the Uniform Civil Procedure Rules 1999, an application filed in a court must be served on each respondent at least 3 business days before the day set for hearing the application.

s 120 amd 2003 No. 55s 46D

121Hearing of application

(1)The Supreme Court must not hear an application for a restraining order unless satisfied the person whose property is the subject of the application has received reasonable notice of the application.

(2)Despite subsection (1), the court must consider the application without notice having been given if the DPP asks the court to do so.

(3)However, the Supreme Court may, at any time before finally deciding the application, direct the State to give notice of the application to a stated person or class of persons in the way and within the time the court considers appropriate.

(4)A person whose property is the subject of the application, and anyone else who claims to have an interest in the property, may appear at the hearing of the application.

s 121 sub 2003 No. 55s 46E

122Making restraining order

(1)The Supreme Court may make a restraining order if, after considering the application and the relevant affidavit, it is satisfied that—

(a)the application relates to a prescribed respondent; and

(b)there are reasonable grounds for the suspicions on which the application is based.

(2)However, if the confiscation offence is a serious criminal offence, the court must make a restraining order unless the court is satisfied in the particular circumstances it is not in the public interest to make the order.

(3)The court may make a restraining order in relation to a prescribed respondent who is about to be charged with a confiscation offence only if the court is satisfied the prescribed respondent will be charged with the confiscation offence or a related offence within the next 48 hours.

(4)The court may refuse to make the restraining order if the State fails to give the court the undertakings the court considers appropriate for the payment of damages or costs, or both, in relation to the making and operation of the order.

(5)The DPP may give the court the undertakings the court requires.

(6)Also, the making of a restraining order does not prevent the person whose property is restrained under the order from giving Legal Aid a charge over the property as a condition of an approval to give legal assistance under the Legal Aid Act in relation to—

(a)a proceeding under this Act; or

(b)a criminal proceeding in which the person is a defendant, including any proceeding on appeal against conviction or sentence.

123Absence of risk does not prevent making of order

The Supreme Court may make a restraining order against property whether or not there is a risk of the property being dealt with in a way that would defeat the operation of this Act.

124Conditions of restraining order

(1)It is a condition of every restraining order that the person whose property is restrained under the order must preserve the property.

(2)The Supreme Court may impose the other conditions the court considers appropriate, including, but not limited to, the following—

(a)a condition about who is to have possession of the property;

(b)a condition of a kind mentioned in section 125 or 126.

125Conditions about dealing with property by agreement

The Supreme Court may impose a condition authorising the DPP to agree to—

(a)the disposal of the property restrained under the restraining order by its owner to enable the proceeds of the disposal to be applied to satisfy all or part of a debt payable under another order made under this Act; or

(b)the application of the property by its owner to satisfy all or part of a debt payable under another order made under this Act.

s 125 amd 2013 No. 21s 45

126Conditions about particular payments out of restrained property

(1)The Supreme Court may impose a condition providing for all or any of the following to be paid out of the property of a particular person, or a stated part of the person’s property, restrained under the restraining order—

(a)the person’s reasonable living expenses and reasonable business expenses;

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

(c)a stated debt incurred in good faith by the person.

(2)Subsection (1) is the only provision of this chapter under which provision may be made for the payment of expenses or a debt mentioned in subsection (1).

(3)Also, subsection (1) applies only if the court is satisfied—

(a)the person can not meet the expense or debt out of property that is not restrained under the order; and

(b)the property from which the expenses or debt are to be paid is not tainted property and is not available substitute property.

(4)Further, subsection (1) does not authorise the imposition of a condition providing for the payment of a person’s legal expenses that are expenses payable because—

(a)the person is a party to a proceeding under this Act; or

(b)the person is a defendant in a criminal proceeding, including any proceeding on appeal against a conviction or sentence.

s 126 amd 2009 No. 2s 34

127Restraining order may direct public trustee to take control of property

If the Supreme Court considers the circumstances require it, the court may, in a restraining order or a later order, direct the public trustee to take control of some or all of the property restrained under the order.

128Duration of restraining order

(1)A restraining order made on an application made without notice to the person to whom it relates is in force for the period, of not more than 7 days, stated in the order or, if no period is stated, 7 days after it is made.

(2)However, a restraining order made on the basis of the proposed charging of the prescribed respondent with a confiscation offence lapses if the person is not charged with the offence or a related offence within 48 hours after the order is made.

(3)Otherwise, a restraining order is in force for the period stated in the order or, if no period is stated, for 1 year after it is made.

129Supreme Court may make other orders

(1)The Supreme Court may make the other orders in relation to a restraining order the court considers appropriate, including, but not limited to, orders mentioned in sections 130 and 130A.

(2)However, section 130(1)(f) is the only provision of this chapter under which provision may be made for the payment of legal expenses that are expenses payable because—

(a)the person is a party to a proceeding under this Act; or

(b)the person is a defendant in a criminal proceeding, including any proceeding on appeal against a conviction or sentence.

(3)The court may make an order under this section—

(a)when making the restraining order or, on application, at a later time; and

(b)whether or not it affects a person whose property is restrained under the restraining order.

(4)Any of the following may apply for an order, other than an investigation order, under this section—

(a)the State;

(b)the prescribed respondent;

(c)a person whose property is restrained under the restraining order;

(d)if the restraining order directs the public trustee to take control of the restrained property under the restraining order—the public trustee.

(5)Another person may apply for an order, other than an investigation order, under this section with the Supreme Court’s leave.

(6)An applicant under subsection (4) must give notice of the making of the application to each other person who may apply under subsection (4) for an order under this section.

(7)An applicant under subsection (5) must give notice of the making of the application to each person who may apply under subsection (4) for an order under this section.

(8)The State may apply for an investigation order.

(9)The State must give notice of an application under subsection (8) to the person to whom the order is to be directed.

(10)Subsections (6), (7) and (9) do not apply to an application for an order under this section made in a proceeding on an application for a restraining order that is made without notice to any person to whom it relates.

(11)Also, subsection (9) does not apply to an application for an investigation order of which notice does not have to be given because of section 129A(2).

s 129 amd 2009 No. 2s 35

129AHearing of application

(1)The Supreme Court must not hear an application for an order under section 129 unless satisfied the person who is, or whose property is, the subject of the application has received reasonable notice of the application.

(2)Despite subsection (1), the court must consider an application for an investigation order without notice having been given if the DPP asks the court to do so.

(3)However, the Supreme Court may, at any time before finally deciding the application, direct the State to give notice of the application to a stated person or class of persons in the way, and within the time, the court considers appropriate.

(4)A person who is, or whose property is, the subject of the application, and anyone else who claims to have an interest in the property, may appear at the hearing of the application.

s 129A ins 2009 No. 2s 36

130Administration orders Supreme Court may make

(1)The court may make any of the following orders under section 129, (each an administration order)—

(a)an order varying the property restrained under the restraining order;

(b)an order imposing additional conditions on the restraining order or varying a condition of the order;

(c)an order about the performance of an undertaking for the payment of damages or costs given for the restraining order;

(d)if the restraining order directs the public trustee to take control of the property, an order—

(i)regulating the way the public trustee may perform functions under the restraining order; or

(ii)deciding any question about the property, including a question affecting the liabilities of the owner of the property or the functions of the public trustee;

(e)an order requiring a person whose property is restrained under the restraining order to do anything necessary or convenient to bring the property within Queensland;

(f)an order for the payment to Legal Aid, from property restrained under the restraining order, of expenses payable by the person whose property is restrained because—

(i)the person is a party to a proceeding under this Act; or

(ii)the person is a defendant in a criminal proceeding, including any proceeding on appeal against conviction or sentence.

(2)A person must not contravene an order made under subsection (1)(e).

Maximum penalty—100 penalty units or 2 years imprisonment.

s 130 amd 2003 No. 55s 47

sub 2009 No. 2s 37

130AInvestigation orders Supreme Court may make

(1)Also, the court may make any of the following orders under section 130 (each an investigation order)—

(a)an order (examination order) requiring a person whose property is restrained under the restraining order or a stated person to attend for examination on oath before the court or a court officer about the following—

(i)the affairs of any person whose property is restrained under the restraining order;

(ii)the nature and location of any property of a person whose property is restrained under the restraining order;

(iii)the nature and location of any property restrained under the restraining order that the applicant for the order reasonably suspects is tainted property;

(b)an order (also an examination order) requiring the spouse of a person whose property is restrained under the restraining order to attend for examination on oath before the court or a court officer about the spouse’s affairs, including the nature and location of property in which the spouse or the person has an interest;

(c)an order (property particulars order) directing any of the following to give to the DPP within a stated time a sworn statement of particulars of, or of dealings with, any property (whether or not the restrained property) as the court considers appropriate—

(i)a person whose property is restrained under the restraining order;

(ii)a person whose property the restrained property was at any time before the restraining order was made;

(iii)if the person mentioned in subparagraph (i) or (ii) is or was a corporation—an executive officer of the corporation.

(2)Subsection (3) applies if an examination order is made without notice of the application for the order being given to a person required to attend for examination.

(3)The examination must not be conducted less than 7 days after the day on which the examination order is made, unless the court considers it appropriate for the examination to be conducted at an earlier time.

s 130A prev s 130A ins 2003 No. 55s 48

om 2009 No. 2s 39

pres s 130A ins 2009 No. 2s 38

131Court officer’s power to conduct examinations

(1)This section applies if a court officer conducts an examination under an examination order.

(2)The court officer constitutes, and may exercise all the jurisdiction and powers of, the court.

(3)However, the court officer may not exercise any power of the court to punish for contempt.

s 131 sub 2009 No. 2s 40

131ATime and place of examination

The examination of a person must be conducted at the time and place stated in the examination order.

s 131A ins 2004 No. 43s 38

131BExamination to take place in private

(1)The examination must take place in private.

(2)The court or court officer may give directions about who may be present during the examination, or during a part of it.

(3)These people are entitled to be present at the examination—

(a)a lawyer of the person being examined; and

(b)an appropriate officer; and

(c)a commission officer; and

(d)a police officer; and

(e)a lawyer representing an appropriate officer, commission officer or police officer; and

(f)any person who is entitled to be present because of a direction under subsection (2).

s 131B ins 2004 No. 43s 38

amd 2009 No. 2s 41

131CRole of the examinee’s lawyer

The lawyer of the person being examined may, at the times during the examination that the court or court officer decides—

(a)address the court or court officer about matters on which the person has been examined; and

(b)examine the person about matters on which the person has been examined.

s 131C ins 2004 No. 43s 38

amd 2009 No. 2s 42

131DRecording evidence

(1)The court or court officer must ensure that, if practicable, evidence given at an examination in Queensland is recorded under the Recording of Evidence Act 1962 or recorded in another way and authenticated by the court or court officer.

(1A)Subsection (1) applies despite the Recording of Evidence Act 1962, section 5.

Note—

The Recording of Evidence Act 1962, section 5, requires evidence given in a legal proceeding to be recorded under that Act, subject to any direction given by the court in which, or judicial person before whom, the legal proceeding is being taken.

(2)The court or court officer must authenticate and sign any deposition or other recording.

(3)If evidence given at an examination is recorded in a deposition, it must—

(a)contain, in question and answer form, the evidence of the person examined; and

(b)be transcribed and read over by or to the person in the court’s or court officer’s presence and in the presence of the parties who wish to attend; and

(c)be signed by the person, or, if the person refuses to sign the deposition, by the court or court officer for the person.

(4)The court or court officer may impose on the person being examined the conditions (if any) that the court or court officer reasonably considers necessary to prevent improper disclosure of the record.

s 131D ins 2004 No. 43s 38

amd 2009 No. 2s 43; 2013 No. 3s 61sch 2

132Privilege—examination order

(1)A person examined under an examination order is not excused from answering a question, or from producing a document or other thing, on the ground that—

(a)answering the question or producing the document may tend to incriminate the person or make the person liable to a forfeiture or penalty; or

(b)producing the document would be in breach of an obligation, whether imposed by an enactment or otherwise, of the person not to disclose the existence or contents of the document; or

(c)answering the question or producing the document would disclose information that is the subject of legal professional privilege.

(2)A statement or disclosure made by a person in answer to a question asked in an examination under an examination order, or a document or other thing produced in the examination, is not admissible against the person in any civil or criminal proceeding, other than—

(a)a proceeding about the false or misleading nature of the statement or disclosure; or

(b)a proceeding on an application under this Act; or

(c)a proceeding for the enforcement of a forfeiture order; or

(d)for a document or other thing, a proceeding about a right or liability it confers.

133Offence to contravene examination order

A person who is required to attend an examination under an examination order under this part must not—

(a)fail to attend as required by the order, unless the person has a reasonable excuse; or

(b)fail to attend from day to day until the conclusion of the examination, unless the person has a reasonable excuse; or

(c)fail to take an oath for the purpose of the examination; or

(d)fail to answer a question that the person is directed to answer by the court or court officer; or

(e)make a statement in the examination that is false or misleading in a material particular.

Maximum penalty—100 penalty units or 2 years imprisonment.

s 133 amd 2009 No. 2s 44

133AUse and dissemination of examination information

(1)This section applies to a statement, disclosure, document or other thing mentioned in section 132(2) (examination information).

(2)The DPP or the commission may give the examination information to—

(a)a corresponding entity to help the entity to obtain other evidence or other information (derived evidence) that may be relevant to the enforcement of a corresponding law; or

(b)an entity of the State, another State or the Commonwealth that has a function of investigating or prosecuting offences to help the entity to obtain other evidence or other information (derived evidence) that may be relevant to the investigation or prosecution of an offence.

(3)The giving of examination information under subsection (2), its use to obtain derived evidence or the admissibility of the derived evidence in a proceeding, including a prosecution for an offence is unaffected by—

(a)the fact that the examination information was obtained because of section 132 and subject to section 131B; or

(b)any duty of confidentiality owed to the person from whom the examination information was obtained; or

(c)the objects of this Act or the particular purpose for which the examination information was obtained.

(4)In this section—

entity of the State, another State or the Commonwealth includes a law enforcement agency established under a law of the State, another State or the Commonwealth.

s 133A ins 2009 No. 2s 45

134Privilege—property particulars order

(1)A person directed under a property particulars order to give a statement to the DPP or the public trustee is not excused from giving the statement or including particulars in the statement on the ground that the statement or particulars may tend to incriminate the person or make the person liable to a forfeiture or penalty.

(2)If a person gives a statement to the DPP or the public trustee under a property particulars order, the statement is not admissible against the person in any criminal proceeding other than a proceeding about the false or misleading nature of the statement.

134AOffence to contravene property particulars order

A person directed under a property particulars order to give a statement to the DPP within a stated period of time—

(a)must comply with the direction unless the person has a reasonable excuse; and

(b)must not make a statement that is false or misleading in a material particular.

Maximum penalty—100 penalty units or 2 years imprisonment.

s 134A ins 2009 No. 2s 46

135Notice of restraining order

(1)This section applies if the Supreme Court—

(a)makes a restraining order; or

(b)makes another order under division 4 in relation to a restraining order.

(2)As soon as practicable after the order is made, the DPP must give each person whose property is restrained under the order and anyone else who is affected by the order a copy of the order.

(2A)However, under subsection (2), the DPP is not required to give a person whose property is restrained under a restraining order a copy of, or notice of, an investigation order directed to another person.

(3)If the order directs the public trustee to take control of property, the DPP must give the public trustee a copy of the order.

(4)The DPP must give the commissioner of the police service a copy of the order.

(5)A restraining order, or another order under division 4, does not stop having effect only because a person required to be served under subsection (2) has not been served with a copy of the order.

s 135 amd 2009 No. 2s 47

136Extension of restraining order

(1)On the application of the State, the Supreme Court may extend the period for which a restraining order is to remain in force.

(2)The State must give notice of the application to—

(a)the prescribed respondent; and

(b)anyone else whose property is restrained under the restraining order; and

(c)anyone else the applicant considers may have an interest in the restrained property.

(3)A person given or entitled to be given notice under subsection (2) may appear at the hearing of the application.

137Restraining order may be set side

(1)On the application of a person mentioned in subsection (2), the Supreme Court may make an order setting aside the restraining order.

(2)The application may be made by—

(a)the State; or

(b)the prescribed respondent; or

(c)a person whose property is restrained under the restraining order or who has an interest in the restrained property.

(3)The applicant must give notice of the application to the DPP and anyone else the applicant considers has an interest in the restrained property.

(4)A person given or entitled to be given notice under subsection (3) may appear at the hearing of the application.

(5)Without limiting subsection (1), the court may set aside a restraining order on the application of a prescribed respondent if the prescribed respondent—

(a)gives security acceptable to the court for payment to satisfy any pecuniary penalty order that may be made against the prescribed respondent on the prescribed respondent’s conviction for the offence; or

(b)gives undertakings satisfactory to the court about the prescribed respondent’s property.

138Supreme Court may order sale of restrained property

(1)This section applies to restrained property under a restraining order only if the State applies to a court for a forfeiture order for the property and the application has not been decided.

(2)The State may, when applying for the forfeiture order or at a later time, apply to the Supreme Court for an order directing the public trustee to sell all or part of the restrained property (application property).

Note—

The forfeiture order application may have been made in another court because the prescribed respondent was convicted before that court.

(3)The State must give notice of the application to each person who has an interest in the application property.

(4)The Supreme Court may make the order if the court is satisfied, on evidence of the public trustee or otherwise—

(a)the application property may deteriorate or lose value before the forfeiture order application is decided; or

(b)the cost of controlling the application property would be more than the value of the property if it were disposed of after a forfeiture order was made.

(5)The proceeds of a sale under an order under this section are taken to be restrained under the restraining order applying to the application property.

139Supreme Court may exclude prescribed respondent’s property from restraining order

(1)A prescribed respondent whose property is restrained under a restraining order may apply to the court to amend the restraining order to exclude particular property of the prescribed respondent from the order.

(2)The court may exclude the prescribed respondent’s property from the order if it is satisfied—

(a)the property is not tainted property and is not available substitute property; and

(b)the relevant offence is not a serious criminal offence; and

(c)a pecuniary penalty order can not be made against the prescribed respondent.

(3)Also, the court may exclude the prescribed respondent’s property from the order if it is satisfied it is in the public interest to amend the order having regard to all the circumstances, including—

(a)a financial hardship or other result of the property remaining restrained under the order; and

(b)the seriousness of the offence; and

(c)the likelihood that the interest will be—

(i)liable to forfeiture under a forfeiture order; or

(ii)automatically forfeited; or

(iii)required to satisfy a pecuniary penalty order.

(4)The Supreme Court may require the prescribed respondent to give security satisfactory to the court to meet any liability that may be imposed on the prescribed respondent under this Act.

s 139 amd 2003 No. 55s 48A; 2009 No. 2s 48

140Supreme Court may exclude other property from restraining order

(1)A person, other than the prescribed respondent (the applicant), whose property is restrained under a restraining order may apply to the Supreme Court to amend the order to exclude the applicant’s property from the order.

(2)If the restraining order was made in relation to a serious criminal offence, the Supreme Court may exclude the applicant’s property from the order if the court is satisfied—

(a)the property is not tainted property and is not available substitute property; and

(b)the property is not under the prescribed respondent’s effective control; and

(c)the applicant was not in any way involved in the commission of the offence.

(3)If the restraining order was made in relation to an offence that is not a serious criminal offence, the Supreme Court may exclude the applicant’s property from the order if the court is satisfied—

(a)the interest is not tainted property and is not available substitute property; and

(b)either—

(i)the applicant’s property is not under the prescribed respondent’s effective control; or

(ii)a pecuniary penalty order can not be made against the prescribed respondent.

(4)Also, the Supreme Court may exclude the applicant’s property from the restraining order if the court is satisfied—

(a)the applicant was not, in any way, involved in the commission of the offence; and

(b)if the applicant acquired the property at the time of or after the commission, or alleged commission, of the offence, the applicant acquired the property—

(i)in good faith and for sufficient consideration; and

(ii)without knowing, and in circumstances not likely to arouse a reasonable suspicion, that the property was tainted property in relation to the offence.

(5)In addition, the Supreme Court may exclude the applicant’s property from the order if the court is satisfied it is in the public interest to amend the order having regard to all the circumstances, including—

(a)a financial hardship or other result of the property remaining restrained under the order; and

(b)the seriousness of the offence; and

(c)the likelihood that the interest will be—

(i)liable to forfeiture under a forfeiture order; or

(ii)automatically forfeited; or

(iii)required to satisfy a pecuniary penalty order.

(6)The Supreme Court may require the applicant to give the undertakings about the applicant’s property the court considers appropriate.

s 140 amd 2003 No. 55s 48B; 2009 No. 2s 49

141Supreme Court may declare restrained property is not subject to automatic forfeiture

(1)This section applies only if the confiscation offence a prescribed respondent has been charged with, is about to be charged with, or has been convicted of, is a serious criminal offence.

(2)If the prescribed respondent has an interest in property restrained under a restraining order, the prescribed respondent may apply to the Supreme Court for a declaration that the property is not subject to automatic forfeiture.

(3)The court may make the declaration sought if it is satisfied—

(a)the property was not used in, or in connection with, any illegal activity and was not derived by a person from illegal activity; and

(b)the prescribed respondent’s interest in the property was lawfully acquired.

142Restraining order to be registered

(1)This section applies if a restraining order applies to property of a particular kind and a law, whether or not a law of the State, provides for the registration of title to, an interest in, or a charge over, property of that kind.

(2)On the application of the DPP, the authority responsible for administering the law must record the particulars of the relevant restraining order in the register kept under the law.

(3)Subsection (2) applies even though a relevant document of title is not produced to a registrar or any other person.

(4)Unless the contrary is proved, a person who deals with property affected by a registered restraining order is taken to know of the restraining order.

(5)If the Land Title Act 1994 applies to the property, the DPP may lodge, and the registrar of titles must register, a caveat over the property under that Act.

(6)As soon as practicable after the relevant restraining order stops having effect in relation to the property—

(a)the DPP must apply for cancellation of the record of the order; and

(b)the authority responsible for administering the relevant law must take the steps necessary to cancel the record.

(7)Also, if the DPP lodged a caveat over the property under subsection (5), as soon as practicable after the relevant restraining order stops having effect in relation to the property, the DPP must withdraw the caveat.

143Contravention of restraining order

(1)A person who does, or attempts to do, an act or makes an omission in relation to restrained property in contravention of a restraining order commits a crime.

Maximum penalty—

(a)for a financial institution—2500 penalty units or the value of the restrained property, whichever is the higher amount; or

(b)otherwise—

(i)1000 penalty units or the value of the restrained property, whichever is the higher amount; or

(ii)7 years imprisonment.

(2)It is a defence to a charge of an offence against subsection (1) for the person to prove that the person had no notice the property was restrained under a restraining order and no reason to suspect it was.

(3)However, the defence under subsection (2) is not available to the extent the restrained property is—

(a)a motor vehicle, boat or outboard motor the subject of a restraining order registered under the Personal Property Securities Act 2009 (Cwlth); or

(b)land over which a caveat in relation to the restraining order is registered under the Land Title Act 1994.

Note—

See section 142(5) for the obligation of the registrar of titles to register the caveat.

(4)Subsection (1) does not prevent the prosecution and punishment of a person who does, or attempts to do, an act or makes an omission mentioned in that subsection for contempt of court or another offence under this Act or another Act.

(5)A dealing with property in contravention of subsection (1) is void unless the dealing was in favour of a person who—

(a)did not know, and could not reasonably be expected to have known, that the property was restrained under a restraining order; and

(b)acted in good faith; and

(c)provided sufficient consideration for the dealing.

(6)Subsection (5) applies whether or not any person is convicted of an offence in relation to the restraining order.

s 143 amd 2010 No. 44 s 172; 2013 No. 21 s 46

sub 2017 No. 6 s 19

144Restraining order does not prevent other action under this Act

A restraining order does not prevent the enforcement of any other order made under this Act against restrained property under a restraining order.

145Authority under restraining order

A restraining order is sufficient authority for a person to whom the order is directed to take all steps necessary or desirable to give effect to the order.

146Application for forfeiture order

(1)This section applies if a person is convicted of a confiscation offence.

(2)The State may apply to the Supreme Court or the court before which the person is convicted for an order (forfeiture order) forfeiting particular property to the State.

(3)The application may include particulars of any encumbrance over the restrained property that an appropriate officer considers an encumbrancee took in good faith, for valuable consideration, and in the ordinary course of the encumbrancee’s business.

(4)Unless the court gives leave, the application must be made within 6 months after the day the person is treated as if convicted of the offence because of section 106.

(5)If the application has been finally decided on the merits, the State may apply to a court under subsection (2) for a further forfeiture order against property relying on a person’s conviction of the confiscation offence to which the previous application relates only with the Supreme Court’s leave.

(6)The Supreme Court may give leave under subsection (5) only if it is satisfied—

(a)the property to which the new application relates was identified only after the first application was finally decided; or

(b)necessary evidence became available only after the first application was finally decided; or

(c)it is otherwise in the interests of justice to give the leave.

147Notice of application

(1)The State must give written notice of the application for the forfeiture order to the person whose conviction is the basis for the application and anyone else the appropriate officer making the application for the State considers has an interest in the property to which the application relates.

(2)A person given notice under subsection (1) may appear at the hearing of the application.

(3)Anyone else who claims an interest in the property may also appear at the hearing of the application.

(4)The absence of a person given notice under subsection (1) does not prevent the court from making a forfeiture order.

148Amendment of application

(1)A court hearing an application for a forfeiture order may amend the application at the request, or with the agreement, of the State.

(2)If the State applies for an amendment of an application for a forfeiture order and the proposed amendment would have the effect of including additional property in the application for the forfeiture order, the State must give written notice of the application for the amendment to—

(a)the person whose conviction is the basis for the application for the forfeiture order; and

(b)anyone else the appropriate officer making the application for the State considers may have an interest in property proposed to be included in the application for the forfeiture order.

(3)A person given notice under subsection (2) and anyone else who claims to have an interest in the additional property may appear at the hearing of the application to amend.

(4)The court may amend an application under this section to include additional property in the application only if the court is satisfied—

(a)the property was not reasonably capable of identification when the application was originally made; or

(b)necessary evidence became available only after the application was originally made.

149Procedure on application

(1)In deciding an application for a forfeiture order, the court must have regard to the evidence given in any proceeding against the person for the confiscation offence on which the application is based.

(2)If—

(a)the application is made to the court before which the person is convicted; and

(b)when the application is made, the court has not passed sentence on the person for the confiscation offence;

the court may defer passing sentence until it has decided the application.

(3)If a person is treated as if convicted under section 106 because the offence is taken into account in sentencing the person for another offence, the reference in subsection (1) to a proceeding against the person for the offence includes a reference to the proceeding for the other offence.

150Limitation on powers of Magistrates Courts

(1)A Magistrates Court may make a forfeiture order because of a conviction for an offence only if it is satisfied the total value of the property to be forfeited under the order and all other property forfeited under other undischarged forfeiture orders made by the court because of the conviction is not more than the limit of a Magistrates Court’s civil jurisdiction.

(2)A Magistrates Court may make a forfeiture order for real property only as permitted under a regulation.

(3)For this section, the value of property is its value as decided by the court.

(4)In this section—

Magistrates Court, other than in relation to the limit of the court’s civil jurisdiction, includes the Childrens Court constituted by a magistrate.

151Making forfeiture order

(1)The court may make a forfeiture order in relation to particular property if—

(a)a person is convicted of a confiscation offence; and

(b)the conviction is the basis for the application for the forfeiture order against the property; and

(c)the court is satisfied the property, or an interest in the property, is tainted property; and

(d)the court, having regard to subsection (2), considers it appropriate to make the order.

(2)For subsection (1)(d), the court may have regard to—

(a)any hardship that may reasonably be expected to be caused to anyone by the order; and

(b)the use that is ordinarily made, or was intended to be made, of the property; and

(c)the seriousness of the offence concerned; and

(d)anything else the court considers appropriate.

(3)The court must presume that particular property is tainted property if—

(a)at the hearing of the application, evidence is presented that the property was in the person’s possession at the time of, or immediately after, the commission of the offence concerned; and

(b)no evidence is presented tending to show that the property is not tainted property.

152Forfeiture order may provide for discharge of encumbrance

(1)If—

(a)the court is satisfied an encumbrancee took an encumbrance over property to be forfeited under a forfeiture order in good faith, for valuable consideration, and in the ordinary course of the encumbrancee’s business; and

(b)the State gives an undertaking to apply the proceeds of disposing of the forfeited property towards discharging the encumbrance;

the court may make the orders about the encumbrance the court considers appropriate.

(2)The DPP may give the undertaking for the State.

153Effect of forfeiture

(1)On the making of a forfeiture order, the property the subject of the order—

(a)is forfeited to the State; and

(b)vests absolutely in the State.

Note—

Under section 213, the State may not dispose of forfeited property during the appeal period as defined in that section.

(2)Subsection (1)(b) is subject to the provisions of this Act under which the Supreme Court may make orders about the property vested or to be vested in the State.

(3)The court that makes the forfeiture order may give any necessary or convenient directions for giving effect to the forfeiture.

Example—

If the person forfeiting the property is in possession of the forfeited property, the court may give directions about who is to have possession of the property.

ch 3 pt 4 div 2A hdg ins 2009 No. 2s 50

153ADefinitions for div 2A

In this division—

applicant means a person who may apply for—

(a)a forfeiture order; or

(b)a restraining order for the purposes of forfeiture.

convicted person means a person convicted of a confiscation offence.

prescribed respondent see section 116.

unavailable property means property that is not available for forfeiture.

s 153A ins 2009 No. 2s 50

153BReferences to property that is not available for forfeiture

For this division, property is not available for forfeiture if the convicted person does not have an interest in the property.

s 153B ins 2009 No. 2s 50

153CApplication for tainted property substitution declaration

(1)If a person is convicted of a confiscation offence, the State may apply for a tainted property substitution declaration to the Supreme Court or the court before which the convicted person is convicted.

(2)The application under subsection (1) must—

(a)be made in conjunction with an application for a forfeiture order; and

(b)state the details of property that the convicted person used or intended to use in, or in connection with, the commission of the confiscation offence; and

(c)state the details of property that is to be substituted for the property mentioned in paragraph (b) that—

(i)is property in which the person had an interest at the time the confiscation offence was committed; and

(ii)is of the same nature or description as the property mentioned in paragraph (b).

Example—

A person is convicted of a confiscation offence involving growing cannabis in a rented home unit. The prosecution may apply to the court for a declaration that a home unit owned by the person is tainted property even though the rented home unit and the defendant’s home unit are not of equal value.

s 153C ins 2009 No. 2s 50

153DCourt may make tainted property substitution declaration

(1)Subject to subsection (2), a court may make a tainted property substitution declaration if the court is satisfied—

(a)that the convicted person used, or intended to use, particular property in, or in connection with, the commission of the confiscation offence; and

(b)that the property mentioned in paragraph (a) is unavailable property; and

(c)that the property that is to be substituted for the property mentioned in paragraph (a)—

(i)is property in which the convicted person had an interest at the time that the confiscation offence was committed; and

(ii)is of the same nature or description as the property mentioned in paragraph (a).

(2)The court may make a tainted property substitution declaration whether or not the value of the unavailable property is equal to the value of the property that is to be substituted for the unavailable property.

(3)If the court makes a tainted property substitution declaration for property, the property—

(a)is substituted for the unavailable property; and

(b)is taken to be tainted property for this chapter.

s 153D ins 2009 No. 2s 50

153ERestraining order for property that may become subject to a tainted property substitution declaration

(1)The State may apply under section 117 for a restraining order for available substitute property.

(2)The application under subsection (1) must—

(a)state the details of property that the prescribed respondent used or intended to use in, or in connection with, the commission of the confiscation offence; and

(b)state the details of the property that may be substituted for the property mentioned in paragraph (a) under a tainted property substitution order that—

(i)is property in which the prescribed respondent had an interest at the time the confiscation offence was committed; and

(ii)is of the same nature or description as the property mentioned in paragraph (a).

(3)For subsection (1), chapter 3, part 3 and any other provisions of this Act that relate to the operation of that part apply with necessary changes and changes prescribed by this section.

(4)For subsection (3)—

(a)section 126 does not apply; and

(b)for section 118(b)(i), the affidavit of the police officer must state instead—

(i)the police officer suspects that—

(A)stated property of the prescribed respondent is tainted property; and

(B)other stated property of the prescribed respondent, that is the subject of the application, is available substitute property; and

(ii)the reason for the suspicion; and

(c)for section 119(3)(a), the affidavit of the police officer must state instead—

(i)the police officer suspects that—

(A)stated property of the other person is tainted property; and

(B)other stated property of the prescribed respondent, that is the subject of the application, is available substitute property; and

(ii)the reason for the suspicion; and

(d)for section 119(4)(a), the affidavit of the police officer must state instead—

(i)the police officer suspects that—

(A)stated property of the other person is tainted property; and

(B)other stated property of the prescribed respondent, that is the subject of the application, is available substitute property; and

(ii)the reason for the suspicion; and

(e)for section 130A(1)(a)(iii), the reference to tainted property is taken to be a reference to available substitute property; and

(f)for section 139(2)(a), the court must instead be satisfied that either—

(i)the prescribed respondent’s property is not available substitute property; or

(ii)the property for which the available substitute property may be substituted under a tainted property substitution declaration is not tainted property; and

(g)for section 140(2)(a) and section 140(3)(a), the court must instead be satisfied that either—

(i)the prescribed respondent’s property is not available substitute property; or

(ii)the property for which the available substitute property may be substituted under a tainted property substitution declaration is not tainted property.

s 153E ins 2009 No. 2s 50