Part 4—Other requests by ICC

Division 14—Identification, tracing, and freezing or seizure, of proceeds of crimes within the jurisdiction of the ICC

Subdivision B—Restraining orders

83 Excluding property from restraining orders
If:
(a) a court makes a restraining order under Part 2-1 of the Proceeds of Crime Act against property in respect of the crime within the jurisdiction of the ICC; and
(b) a person having an interest in the property applies to the court under Division 3 of Part 2-1 of that Act for an order varying the restraining order to exclude the person’s interest from the restraining order;
the court must grant the application if the court is satisfied that:
(c) in a case where the applicant is not the defendant:
(i) the applicant was not, in any way, involved in the commission of the crime; and
(ii) if the applicant acquired the interest at the time of or
after the commission, or alleged commission, of the crime—the property was not proceeds of the crime; or
(d) in any case—it is in the public interest to do so having regard to any financial hardship or other consequence of the interest remaining subject to the order.

Part 11—Forfeiture of proceeds of international crimes

158 Effect on third parties of registration of forfeiture order

Applications by third parties
(1) If a court registers under section 156 a forfeiture order in relation to property, a person who:
(a) claims an interest in the property; and
(b) was not convicted of a crime within the jurisdiction of the ICC to which the order relates; may apply to the court for an order under subsection (2).

Orders by the court
(2) If, on an application for an order under this subsection, the court is satisfied that:
(a) the applicant was not, in any way, involved in the commission of a crime within the jurisdiction of the ICC to which the order relates; and
(b) if the applicant acquired the interest in the property at the time of or after the commission of such a crime—the property was not proceeds of such a crime;
the court must make an order:
(c) declaring the nature, extent and value (as at the time when the order is made) of the applicant’s interest in the property; and
(d) either:
(i) directing the Commonwealth to transfer the interest to the applicant; or(ii) declaring that there is payable by the Commonwealth to the applicant an amount equal to the value declared under paragraph (c).

Certain people need leave to apply
(3) A person who was given notice of, or appeared at, the hearing held in connection with the making of the order is not entitled to apply under subsection (1) unless the court gives leave.
(4) The court may grant leave if it is satisfied that there are special grounds for doing so.
(5) Without limiting subsection (4), the court may grant a person leave if the court is satisfied that:
(a) the person, for a good reason, did not attend the hearing referred to in subsection (3) although the person had notice of the hearing; or
(b) particular evidence that the person proposes to adduce in connection with the proposed application under subsection (1) was not available to the person at the time of the hearing referred to in subsection (3).

Period for applying
(6) Unless the court gives leave, an application under subsection (1) is to be made before the end of 6 weeks beginning on the day when the order is registered in the court.
(7) The court may give leave to apply outside that period if the court is satisfied that the person’s failure to apply within that period was not due to any neglect on the person’s part.

Procedural matters
(8) A person who applies under subsection (1) must give to the proceeds of crime authority authorised under subsection 155(2) notice, as prescribed, of the application.
(9) That proceeds of crime authority is to be a party to proceedings on an application under subsection (1). The Attorney-General may intervene in such proceedings.