Buying Back Forfeited Property from a sections 47, 48, or 49 order

A court that makes a forfeiture order against property may make an order excluding a specified interest from a forfeiture order[1] if it is satisfied that:

• It would not be contrary to the public interest for a person’s interest in the property to be transferred to the person; and
• There is no other reason why the person’s interest in the property should not be transferred to that person.

If a court makes a forfeiture order against property, and excludes the interest that is to be bought back, then the Minister[2] must arrange for the interest to be transferred to the person in whom it was vested immediately before the property was forfeited to the Commonwealth.[3]

Buying Back Forfeited Property from a section 92 automatic forfeiture order

A court that makes a forfeiture order against property may make an order declaring that the forfeiture order[4] ceases to operate in relation to the applicant’s interest if:

• It would not be contrary to the public interest for a person’s interest in the property to be transferred to the person; and
• There is no other reason why the person’s interest in the property should not be transferred to that person.

If a court makes a forfeiture order against property, and excludes the interest that is to be bought back, then the Minister[5] must arrange for the interest to be transferred to the person in whom it was vested immediately before the property was forfeited to the Commonwealth.[6]

[1] S 57 Proceeds of Crime Act 2002 (Cth).

[2] Being the Minister for Home Affairs – Administrative Arrangements Order 19/04/18.

[3] S 90(1)(d) Proceeds of Crime Act 2002 (Cth).

[4] S 103 Proceeds of Crime Act 2002 (Cth).

[5] Being the Minister for Home Affairs – Administrative Arrangements Order 19/04/18.

[6] S 105(1)(d) Proceeds of Crime Act 2002 (Cth).

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

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