Commonwealth Numbered Acts

PROCEEDS OF CRIME ACT 1987 No. 87, 1987 - SECT 42

42. (1) Where a police officer is authorised, under the Mutual Assistance Act,
to apply to a magistrate of a State or Territory for a search warrant under
this Act in relation to tainted property in respect of a foreign serious
offence, the police officer may apply for the warrant accordingly and this
Division applies to the application and to any warrant issued as a result of
the application as if:

   (a)  references in this Division to tainted property were references to
        tainted property in relation to the foreign serious offence;

   (b)  references to a magistrate were references to a magistrate of the
        State or Territory specified in the police officer's authorisation
        under the Mutual Assistance Act; and

   (c)  subsection 36 (5), paragraph 36 (6) (b), subsection 36 (9) and
        section  40 were omitted.

(2) If, in the course of searching, under a warrant issued under section 36,
for tainted property in relation to a foreign serious offence, a police
officer finds:

   (a)  any property that the police officer believes, on reasonable grounds,
        to be tainted property in relation to the foreign serious offence,
        although not of the kind specified in the warrant;

   (b)  any property that the police officer believes, on reasonable grounds,
        to be tainted property in relation to another foreign serious offence
        in respect of which a search warrant under section 36 is in force; or

   (c)  any thing that the police officer believes, on reasonable grounds:

        (i)    to be relevant to a criminal proceeding in the foreign country
               in respect of the foreign serious offence; or

        (ii)   will afford evidence as to the commission of a criminal
               offence; and the police officer believes, on reasonable
               grounds, that it is necessary to seize that property or thing
               in order to prevent its concealment, loss or destruction, or
               its use in committing, continuing or repeating the offence, the
               warrant shall be deemed to authorise the police officer to
               seize that property or thing.

(3) Where property has been seized under a warrant issued under section 36 in
respect of a foreign serious offence, a person who claims an interest in the
property may apply to the Supreme Court of the State or Territory in which the
warrant was issued for an order that the property be returned to the person.

(4) Where a person makes an application under subsection (3) and the court is
satisfied that:

   (a)  the person is entitled to possession of the property;

   (b)  the property is not tainted property in relation to the relevant
        foreign serious offence; and

   (c)  the person who is believed or alleged to have committed the relevant
        foreign serious offence has no interest in the property; the court
        shall order the Commissioner to return the property to the person and
        where such an order is made the Commissioner shall arrange for the
        property to be returned to the person.

(5) Where:

   (a)  property has been seized under a warrant issued under section 36 in
        respect of a foreign serious offence; and

   (b)  at the end of the period of 30 days after the day on which the
        property was seized:

        (i)    neither a foreign restraining order, nor a foreign forfeiture
               order, in relation to the property has been registered in a
               court in Australia under the Mutual Assistance Act; and

        (ii)   a restraining order has not been made under this Act in respect
               of the property in relation to the foreign serious offence; the
               Commissioner shall, subject to subsections (6) and (7), arrange
               for the property to be returned to the person from whose
               possession it was seized as soon as practicable after the end
               of that period.

(6) Where:

   (a)  property has been seized under a warrant issued under section 36 in
        respect of a foreign serious offence;

   (b)  but for this subsection, the Commissioner would be required to arrange
        for the property to be returned to the person as soon as practicable
        after the end of a particular period; and

   (c)  before the end of that period:

        (i)    a foreign restraining order in relation to the property is
               registered in a court in Australia under the Mutual Assistance
               Act; or

        (ii)   a restraining order is made under this Act in respect of the
               property in relation to the foreign serious offence; the
               following provisions have effect:

   (d)  if there is in force, at the end of that period, a direction by a
        court that the Official Trustee take custody and control of the
        property-the Commissioner shall arrange for the property to be given
        to the Official Trustee in accordance with the direction;

   (e)  if there is in force at the end of that period an order under
        subsection (7) in relation to the property-the Commissioner shall
        arrange for the property to be kept until it is dealt with in
        accordance with another provision of this Act.

(7) Where:

   (a)  property has been seized pursuant to a warrant issued under section 36
        in respect of a foreign serious offence;

   (b)  either:

        (i)    a foreign restraining order in respect of the property has been
               registered in an Australian court under the Mutual Assistance
               Act; or

        (ii)   a restraining order is made under this Act in respect of the
               property in relation to the foreign serious offence; and

   (c)  at the time when the restraining order is registered or made, the
        property is in the possession of the Commissioner; the Commissioner
        may apply to the court in which the restraining order was registered,
        or by which the restraining order was made, for an order that the
        Commissioner retain possession of the property and the court may, if
        satisfied that the property is required by the Commissioner to be
        dealt with in accordance with a request under the Mutual Assistance
        Act by the foreign country that requested the registration of, or the
        obtaining of, the restraining order, make an order that the
        Commissioner may retain the property for so long as the property is so
        required.

(8) Where:

   (a)  property has been seized under a warrant issued under section 36 in
        respect of a foreign serious offence; and

   (b)  while the property is in the possession of the Commissioner a foreign
        forfeiture order in respect of the property is registered in a court
        in Australia under the Mutual Assistance Act; the Commissioner shall
        deal with the property as required by the forfeiture order.

(9) Where:

   (a)  a warrant is issued under section 36 in respect of a foreign serious
        offence; and

   (b)  property is seized pursuant to the warrant because it may afford
        evidence as to the commission of a criminal offence; the property
        shall, for the purposes of subsections (3), (4), (5), (6) and (7) of
        this section, be taken not to be property seized pursuant to the
        warrant.