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 F—Search warrants relating to proceeds of crime and property tracking documents


100 Return of seized property to third parties

(1) A person who claims an interest in property (other than a property tracking document) that has been seized under a search warrant issued under Part 3 5 of the Proceeds of Crime Act in relation to a crime within the jurisdiction of the ICC may apply to a court for an order that the property be returned to the person.

(2) The court must be a court of the State or Territory in which the warrant was issued that has proceeds jurisdiction.

(3) The court must order the head of the authorised officer’s enforcement agency to return the property to the applicant if the court is satisfied that:
(a) the applicant is entitled to possession of the property; and
(b) the property is not proceeds of the relevant crime within the jurisdiction of the ICC; and
(c) the person who is believed or alleged to have committed the relevant crime within the jurisdiction of the ICC has no interest in the property.

(4) If the court makes such an order, the head of the authorised officer’s enforcement agency must arrange for the property to be returned to the applicant.

(5) This section does not apply to property that has been seized because it may afford evidence as to the commission of an Australian criminal offence.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

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:

the applicant was not, in any way, involved in the commission of the crime; and

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.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

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 F—Search warrants relating to proceeds of crime and property-tracking documents

100 Return of seized property to third parties

(1) A person who claims an interest in property (other than a property-tracking document) that has been seized under a search warrant issued under Part 3-5 of the Proceeds of Crime Act in relation to a crime within the jurisdiction of the ICC may apply to a court for an order that the property be returned to the person.

(2) The court must be a court of the State or Territory in which the warrant was issued that has proceeds jurisdiction.

(3) The court must order the head of the authorised officer’s enforcement agency to return the property to the applicant if the court is satisfied that:

the applicant is entitled to possession of the property; and

the property is not proceeds of the relevant crime within the jurisdiction of the ICC; and

the person who is believed or alleged to have committed the relevant crime within the jurisdiction of the ICC has no interest in the property.

(4) If the court makes such an order, the head of the authorised officer’s enforcement agency must arrange for the property to be returned to the applicant.

(5) This section does not apply to property that has been seized because it may afford evidence as to the commission of an Australian criminal offence.

An Act to facilitate compliance by Australia with obligations under the Rome Statute of the International Criminal Court, and for related purposes

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:

claims an interest in the property; and

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:
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

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:

declaring the nature, extent and value (as at the time when the order is made) of the applicant’s interest in the property; and
either:

directing the Commonwealth to transfer the interest to the applicant; or

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:
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 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 .

Article 109
Enforcement of fines and forfeiture measures
2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.