Form 11—Notice authorising application for registration of forfeiture order

Commonwealth of Australia

International Criminal Court Act 2002

Authorisation under subsection 155(2) to apply for registration of a forfeiture order

To [insert proceeds of crime authority]:

Because:
(a) the International Criminal Court has requested me to make arrangements for the enforcement of a forfeiture order made in relation to property that is reasonably suspected of being in Australia; and
(b) I am satisfied that:
(i) [insert name of person] has been convicted by the International Criminal Court of the crime within the jurisdiction of the Court to which the order relates; and
(ii) the conviction and the order are not subject to appeal or further appeal in the Court;
I, , Attorney General of the Commonwealth of Australia, under subsection 155(2) of the International Criminal Court Act 2002, authorise you, [insert proceeds of crime authority], to apply for the registration of the attached order.

Part 11—Forfeiture of proceeds of international crimes

155 Requests for enforcement of forfeiture orders
(1) This section applies if:
(a) the ICC requests the Attorney-General to make arrangements for the enforcement of a forfeiture order made in relation to property that is reasonably suspected of being in Australia; and
(b) the Attorney-General is satisfied:
(i) that a person has been convicted by the ICC of the crime within the jurisdiction of the ICC to which the order relates; and
(ii) the conviction and the order are not subject to appeal or further appeal in the ICC.
(2) The Attorney-General is to execute the request by authorising, by written notice in the statutory form, a proceeds of crime authority to apply for the registration of the order.

156 Registration of order
(1A) An application for the registration of an order in accordance with an authorisation under subsection 155(2) must be to a court with proceeds jurisdiction.
(1) If a proceeds of crime authority so applies to a court with proceeds jurisdiction, the court must register the order, unless the court is satisfied that it would be contrary to the interests of justice to do so.
(2) The proceeds of crime authority must give notice of the application:
(a) to specified persons who the authority has reason to suspect may have an interest in the property; and
(b) to such other persons as the court directs.
(3) However, the court may consider the application without notice having been given if the proceeds of crime authority requests the court to do so.
(4) An order is to be registered in a court by the registration, under the rules of the court, of a copy of the order authenticated by the ICC.
(5) A copy sent by fax, email or other electronic means of an authenticated copy of an order is taken for the purposes of subsection (4) to be the same as the authenticated copy.
(6) However, a registration effected by a court registering a copy of an authenticated copy ceases to have effect after 45 days unless the authenticated copy has been filed by then in that court.

157 Effect of order
(1) A forfeiture order registered in a court has effect, and may be enforced, as if it were an order made by the court under the Proceeds of Crime Act at the time of registration.
(2) In particular, section 68 of that Act applies in relation to the forfeiture order as if:
(a) the reference in subparagraph 68(1)(b)(i) of that Act to a proceeds of crime authority having applied for the order were a reference to the authority having applied for registration of the order under section 156 of this Act; and
(b) subparagraph 68(1)(b)(ii) of that Act were omitted.
(3) Subject to subsection (4) and to section 158, property that is subject to a forfeiture order registered under this Part may be disposed of, or otherwise dealt with, in accordance with any direction of the Attorney-General or of a person authorised in writing by the Attorney-General for the purposes of this subsection.
(4) In giving a direction under subsection (3), the Attorney-General or authorised person must consider any order by the ICC for the property that is subject to the forfeiture order to be transferred to the ICC Trust Fund.
(5) Sections 69 and 70, Divisions 5 to 7 of Part 2-2, Part 4-2 and sections 322 and 323 of the Proceeds of Crime Act do not apply in relation to an order registered under this Part.

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.

159 Forfeiture may be treated as pecuniary penalty order
(1) This section applies if the Attorney-General is unable to give effect to a forfeiture order.
(2) The Attorney-General must take measures to recover:
(a) the value specified by the International Criminal Court to be the value of the property ordered by that Court to be forfeited; or
(b) if the International Criminal Court has not specified the value of the property ordered by that Court to be forfeited—the value that, in the Attorney-General’s opinion, is the value of that property.
(3) The forfeiture order is taken, for the purposes of the Proceeds of Crime Act, to be a pecuniary penalty order for an amount equal to the value referred to in subsection (2) and may be enforced as if it were a pecuniary penalty order made by the court in which the forfeiture order was registered.
(4) Division 4 of Part 2-4 of the Proceeds of Crime Act applies to the enforcement of the forfeiture order as a pecuniary penalty order as if:
(a) references in that Division to indictable offences or serious offences were references to crimes within the jurisdiction of the ICC; and
(b) the reference in paragraph 142(2)(a) of that Act to the order being discharged under Division 5 were a reference to the conviction being quashed by the ICC; and
(c) subsections 140(3) and (5) of that Act were omitted.

Part VI—Proceeds of crime
Division 2—Requests by foreign countries
Subdivision A—Enforcement of foreign orders
34A Registration of foreign orders
(1A) An application to a court for registration of a foreign order in accordance with an authorisation under this Subdivision must be to a court with proceeds jurisdiction.
(1) If a proceeds of crime authority applies to a court with proceeds jurisdiction for registration of a foreign order in accordance with an authorisation under this Subdivision, the court must register the order accordingly, unless the court is satisfied that it would be contrary to the interests of justice to do so.
(2) The proceeds of crime authority must give notice of the application:
(a) to specified persons the authority has reason to suspect may have an interest in the property; and
(b) to such other persons as the court directs.
(3) However, the court may consider the application without notice having been given if the proceeds of crime authority requests the court to do so.
(4) If a foreign pecuniary penalty order or a foreign restraining order is registered in a court under this Subdivision:
(a) a copy of any amendments made to the order (whether before or after registration) may be registered in the same way as the order; and
(b) the amendments do not, for the purposes of this Act and the Proceeds of Crime Act, have effect until they are registered.
(5) An order or an amendment of an order is to be registered in a court by the registration, in accordance with the rules of the court, of:
(a) a copy of the appropriate order or amendment sealed by the court or other authority making that order or amendment; or
(b) a copy of that order or amendment duly authenticated in accordance with subsection 43(2).

34B Enforcement of foreign forfeiture orders
(1) A foreign forfeiture order registered in a court under this Subdivision has effect, and may be enforced, as if it were a forfeiture order made by the court under the Proceeds of Crime Act at the time of registration.
(2) In particular, section 68 of the Proceeds of Crime Act applies in relation to the forfeiture order as if:
(a) the reference in subparagraph 68(1)(b)(i) of that Act to a proceeds of crime authority having applied for the order were a reference to the foreign forfeiture order having been made; and
(b) subparagraph 68(1)(b)(ii) of that Act did not apply if the person in question died after the authority applied for registration of the order under section 34A of this Act.
(3) Subject to section 34C, property that is subject to a foreign forfeiture order registered under this Subdivision may be disposed of, or otherwise dealt with, in accordance with any direction of the Attorney General or of a person authorised by the Attorney General in writing for the purposes of this subsection.
(4) Sections 69 and 70 and Divisions 5 to 7 of Part 2 2 of the Proceeds of Crime Act do not apply in relation to a foreign forfeiture order registered under this Subdivision.

34D Enforcement of foreign pecuniary penalty orders
(1) A foreign pecuniary penalty order registered in a court under this Subdivision has effect, and may be enforced, as if it were a pecuniary penalty order that:
(a) was made by the court under the Proceeds of Crime Act at the time of registration; and
(b) requires the payment to the Commonwealth of the amount payable under the order.
(2) Any amount paid (whether in Australia, in the foreign country in which the order was made or elsewhere) in satisfaction of the foreign pecuniary penalty order is taken to have been paid in satisfaction of the debt that arises because of the registration of the foreign pecuniary penalty order in that court.
(3) Division 5 of Part 2 4 of the Proceeds of Crime Act does not apply in relation to a foreign pecuniary penalty order registered under this Subdivision.