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
97 Requests for search warrants
(1) If:
(a) the request from the ICC referred to in section 81 involves the issue of a search warrant relating to the proceeds of the crime within the jurisdiction of the ICC or a property tracking document; and
(b) the Attorney General is satisfied that:
(i) the request relates to an investigation being conducted by the Prosecutor or a proceeding before the ICC; and
(ii) proceeds of the crime, or a property tracking document in relation to the crime, is reasonably suspected of being located in Australia;
the Attorney General may authorise an authorised officer of an enforcement agency to apply to a magistrate of a specified State or Territory for a search warrant under the Proceeds of Crime Act in relation to the proceeds or document.
(2) The State or Territory specified must be a State or Territory in which:
(a) the proceeds, or some or all of the proceeds, are reasonably suspected of being located; or
(b) the document is, or some or all of the documents are, reasonably suspected of being located.
98 Applying for and issuing search warrants
(1) If so authorised, the authorised officer may apply for such a search warrant, in relation to those proceeds or that document, in respect of the crime.
(2) Part 3 5 of the Proceeds of Crime Act applies to the application, and to any search warrant issued as a result.
(3) It applies as if:
(a) references in that Part to a property tracking document were references to a property tracking document relating to the crime; and
(b) references in that Part to a magistrate were references to a magistrate of the State or Territory specified in the authorised officer’s authorisation under subsection 97(1); and
(c) paragraph 228(1)(d) and sections 256 to 258 of that Act were omitted.
99 Seizure of other property and documents
(1) 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 authorises an authorised officer to seize property or a thing that he or she finds and believes on reasonable grounds to be:
(a) proceeds of the crime or a property tracking document in relation to the crime, although not of the kind specified in the warrant; or
(b) proceeds of, or a property tracking document in relation to, another crime within the jurisdiction of the ICC in relation to which a search warrant issued under that Part is in force; or
(c) something that:
(i) is relevant to a proceeding in the ICC in respect of the crime within the jurisdiction of the ICC; or
(ii) will afford evidence as to the commission of an Australian criminal offence.
(2) However, this section only applies if the authorised officer believes on reasonable grounds that it is necessary to seize the property or thing in order to prevent its concealment, loss or destruction or its use in committing an offence.
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.
101 Dealing with seized property (other than property tracking documents)
Property covered by this section
(1) Property (other than a property tracking document) must be dealt with in accordance with this section if:
(a) it has been seized under a search warrant issued, pursuant to an authorisation under section 97, under Part 3 5 of the Proceeds of Crime Act in relation to a crime within the jurisdiction of the ICC; and
(b) it has not been seized under paragraph 99(1)(c).
General rule—property to be returned after 30 days
(2) If, at the end of the period of 30 days after the day on which the property was seized:
(a) a forfeiture order in relation to the property has been registered in a court under Part 11; and
(b) a restraining order has not been made under Subdivision B in respect of the property in relation to the crime within the jurisdiction of the ICC;
the head of the enforcement agency whose authorised officer seized the property must, unless subsection (3), (5) or (7) applies, 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.
Effect of restraining orders being registered or obtained
(3) If, before the end of that period, a restraining order is made under Subdivision B in respect of the property in relation to the crime within the jurisdiction of the ICC, the head of the enforcement agency whose authorised officer seized the property:
(a) 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—must arrange for the property to be given to the Official Trustee in accordance with the direction; or
(b) if there is in force at the end of that period an order under subsection (6) in relation to the property—must arrange for the property to be retained until it is dealt with in accordance with another provision of this Act or the Proceeds of Crime Act.
(4) If the property is subject to a direction of a kind referred to in paragraph (3)(a), the Proceeds of Crime Act applies to the property as if it were controlled property within the meaning of that Act.
Retaining property despite restraining orders
(5) If, at a time when the property is in the possession of the head of the enforcement agency whose authorised officer seized the property, a restraining order has been made under Subdivision B in respect of the property in relation to the crime within the jurisdiction of the ICC, the head of the enforcement agency 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 head of the enforcement agency retain possession of the property.
(6) If the court is satisfied that the head of the enforcement agency requires the property to be dealt with in accordance with a request under section 81 that the restraining order be obtained, the court may make an order that the head of the enforcement agency may retain the property for so long as the property is so required.
Effect of forfeiture orders by the ICC being registered or obtained
(7) If, while the property is in the possession of the head of the enforcement agency whose authorised officer seized it, a forfeiture order in respect of the property is registered in a court under Part 11, the head of the enforcement agency must deal with the property as required by the forfeiture order.
102 Dealing with seized property tracking documents
(1) An authorised officer who takes possession of a property tracking document under a warrant issued in respect of a crime within the jurisdiction of the ICC may retain the document for a period not exceeding one month pending a written direction from the Attorney General as to how to deal with the document.
(2) Directions from the Attorney General may include a direction that the document be sent to the ICC.
Search and seizure - national procedures for ICC proceedings
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