S. 3(1) def. of automatic forfeiture amended by Nos 87/2004 s. 5(a), 55/2014 s. 17(a). automatic forfeiture means— (a) forfeiture under section 35; or (ab) forfeiture under section 36GA; or (b) the making of a pecuniary penalty order on an application under section 58(1) if section 68 applies in relation to the Schedule 2 offence; S. 3(1) def. of automatic forfeiture offence substituted by No. 63/2003 s. 4(1), amended by No. 104/2003 s. 5(2), repealed by No. 87/2004 s. 5(b). * * * * * S. 3(1) def. of automatic forfeiture quantity inserted by No. 63/2003 s. 5(1). automatic forfeiture quantity has the same meaning as it has in the Drugs, Poisons and Controlled Substances Act 1981; S. 3(1) def. of bank amended by No. 11/2001 s. 3(Sch. item 13). bank means— (a) the Reserve Bank of ; or (b) an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth; (c) a person who carries on State banking within the meaning of section 51(xiii) of the Constitution of the Commonwealth; s. 3
S. 3(1) def. of exclusion order amended by No. 68/2010 s. 35(3)(a). exclusion order means an order made under section 21, 22, 50(1) or 52(1), but does not include a civil forfeiture exclusion order; facsimile copy means a copy obtained by facsimile transmission; S. 3(1) def. of financial institution amended by Nos 63/2003 s. 4(a)(b), 79/2006 s. 86. financial institution means— s. 3 (a) a bank; or (b) a building society; or (c) a credit union; or (d) a body corporate that is or, if it had been incorporated in , would be, a financial corporation within the meaning of section 51(xx) of the Constitution of the Commonwealth; or (e) a casino operator within the meaning of the Casino Control Act 1991; or (f) the holder of the wagering licence under Part 3 of Chapter 4 of the Gambling Regulation Act 2003; fixed term deposit means an interest bearing deposit lodged for a fixed period; S. 3(1) def. of forfeiture offence amended by No. 104/2003 s. 5(2), repealed by No. 87/2004 s. 5(b). * * * * * forfeiture order means an order made under Division 1 of Part 3;
S. 3(1) def. of unexplained wealth forfeiture inserted by No. 79/2014 s. 4(f). unexplained wealth forfeiture means forfeiture under section 40ZA; s. 3 S. 3(1) def. of unexplained wealth forfeiture exclusion order inserted by No. 79/2014 s. 4(f). unexplained wealth forfeiture exclusion order means— (a) a section 40S exclusion order; or (b) a section 40ZD exclusion order; S. 3(1) def. of unexplained wealth restraining order inserted by No. 79/2014 s. 4(f). unexplained wealth restraining order means an order under section 40I; S. 3(1) def. of unlawful activity amended by No. 43/1998 s. 7. unlawful activity means an act or omission that constitutes an offence against a law in force in the Commonwealth, Victoria or another State, a Territory or a foreign country punishable by imprisonment; Victoria Legal Aid means Victoria Legal Aid established under the Legal Aid Act 1978. S. 3(2) inserted by No. 63/2003 s. 5(2), amended by No. 108/2004 s. 117(1) (Sch. 3 item 38). (2) If under the Public Administration Act 2004 the name of the Department of Justice is changed, the reference in subsection (1) in the definition of Secretary to that Department must, from the date when the name is changed, be treated as a reference to the Department by its new name.
S. 21(b)(i)(D) substituted by No. 42/2007 s. 5(2), amended by No. 68/2009 s. 97(Sch. item 23.19). (D) the applicant's interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 1 offence or the date that the restraining order was made in relation to the property; and S. 21(b)(i)(E) amended by No. 68/2009 s. 97(Sch. item 23.19). (E) where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration; or S. 21(b)(ii) amended by No. 42/2007 s. 5(1)(b). (ii) the court is satisfied as specified in paragraph (a)(i) but not satisfied as specified in paragraph (a)(ii), the court may make an order excluding the applicant's interest in the property from the operation of the restraining order if satisfied that— s. 21 S. 21(b)(ii)(A) substituted by No. 42/2007 s. 5(3), amended by No. 68/2009 s. 97(Sch. item 23.19). (A) the applicant's interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 1 offence or the date that the restraining order was made in relation to the property; and S. 21(b)(ii)(B) amended by No. 68/2009 s. 97(Sch. item 23.19). (B) where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration. S. 21(2) inserted by No. 68/2010 s. 14(1). (2) If the court makes an order under subsection (1), the court may also make an order declaring the nature, extent and value of the applicant's interest in the property.
S. 22(b)(i)(E) amended by No. 68/2009 s. 97(Sch. item 23.20). (E) where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration; or S. 22(b)(ii) amended by No. 42/2007 s. 6(5)(a). (ii) if the court is satisfied that the property is not tainted property or derived property and that— S. 22(b)(ii)(A) substituted by No. 42/2007 s. 6(5)(b), amended by No. 68/2009 s. 97(Sch. item 23.20). (A) the applicant's interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 2 offence or the date that the restraining order was made in relation to the property; and S. 22(b)(ii)(B) amended by No. 68/2009 s. 97(Sch. item 23.20). (B) where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration; or s. 22 S. 22(c) amended by Nos 42/2007 s. 6(1)(c), 68/2009 s. 97(Sch. item 23.20). (c) where the application is made by the executor or administrator of the estate of a deceased accused, the court may make an order excluding the applicant's interest in the property from the operation of the restraining order if the court is satisfied that— S. 22(c)(i) amended by No. 68/2009 s. 97(Sch. item 23.20). (i) the accused is dead; and S. 22(c)(ii) amended by Nos 43/1998 s. 12, 68/2009 s. 97(Sch. item 23.20). (ii) there are reasonable grounds to believe that the interest claimed by the estate of the accused was lawfully acquired by the accused; and s. 22
3 business days after a freezing order has been made. (4) A notice under this section must be given in accordance with section 137 and, without limiting the generality of that section, may be given by facsimile. (5) For the purposes of this section, the regulations may prescribe a composite form which incorporates the prescribed notice required by subsection (1) and the prescribed notice required by subsection (2). S. 31H inserted by No. 63/2003 s. 10. 31H When does a freezing order take effect? s. 31H (1) A freezing order takes effect on the date and at the time that notice of the freezing order is given to the financial institution in accordance with section 31G. (2) Subject to section 31I, a freezing order ceases to be in force on— S. 31H(2)(a) amended by No. 68/2010 s. 48(1). (a) the making of a restraining order or a civil forfeiture restraining order in respect of the money in the account; or S. 31H(2)(b) amended by No. 68/2010 s. 16(1). (b) the expiration of 3 business days after the day on which the freezing order took effect— whichever occurs first. S. 31I inserted by No. 63/2003 s. 10. 31I Extension of freezing orders (1) A person who applied for a freezing order may apply to the Magistrates' Court for an extension of the duration of that freezing order. (2) On an application under subsection (1), the Magistrates' Court— (a) must have regard to the matters set out in section 31F(2); and
(ii) ceased to be in force; and (c) stating whether or not the freezing order was extended. (2) A report under this section must be made— (a) within 7 days after the freezing order ceases to be in force; or (b) if notice of the freezing order was not given to the financial institution, within 7 days after the freezing order was made. S. 31K inserted by No. 63/2003 s. 10. 31K Failure to comply with freezing order (1) A financial institution that has been given notice of a freezing order must not, without reasonable excuse, fail to comply with the order. Level 5 fine (1200 penalty units maximum). (2) An offence against this section is a summary offence. S. 31L inserted by No. 63/2003 s. 10. 31L Offence to disclose existence of freezing order s. 31L (1) While a freezing order is in force, a financial institution that has been given notice of a freezing order must not disclose the existence or operation of the freezing order to any person except— S. 31L(1)(a) substituted by No. 37/2014 s. 10(Sch. item 25.6(a)). (a) a police officer; or (b) an officer or agent of the financial institution, for the purpose of ensuring that the freezing order is complied with; or (c) a legal practitioner acting for the financial institution, for the purpose of obtaining legal advice or representation in relation to the freezing order; or
Division 1—Forfeiture on court order 32 Application for forfeiture order S. 32(1) amended by Nos 87/2004 s. 22(1)(d), 68/2009 s. 97(Sch. item 23.23). s. 32 (1) If an accused is convicted of a Schedule 1 offence, the DPP or an appropriate officer may apply to the Supreme Court or the court before which the accused was convicted of the offence for a forfeiture order in respect of tainted property. (2) Except with the leave of the court, an application may only be made under subsection (1) before the end of the relevant period (if any) in relation to the conviction. (3) A court must not grant leave under subsection (2) unless it is satisfied that— (a) the property to which the application relates was derived, realised or identified only after the end of the relevant period; or (b) necessary evidence became available only after the end of the relevant period; or (c) it is otherwise in the interests of justice to do so. (4) The applicant must give written notice of the application— S. 32(4)(a) amended by Nos 63/2003 s. 11, 68/2009 s. 97(Sch. item 23.23(b)). (a) to the accused, unless the accused has absconded; and (b) to any other person whom the applicant has reason to believe has an interest in the property.
(ii) is of the same nature or description as the property referred to in paragraph (a). (2) The court may make a tainted property substitution declaration whether or not the value of the property which is not available for forfeiture is equal to the value of the property which is to be substituted for that property. S. 34C(3) amended by Nos 87/2004 s. 22(1)(g), 68/2009 s. 97(Sch. item 23.27). (3) A court must not make a tainted property substitution declaration in respect of any property if, at the time of the commission of the Schedule 1 offence, the accused did not have an interest in the property. (4) If the court makes a tainted property substitution declaration in respect of property, that property— (a) is substituted for the property which is not available for forfeiture; and (b) is deemed to be tainted property for the purposes of this Act. Division 2—Automatic forfeiture after conviction 35 Automatic forfeiture of restrained property on conviction of certain offences s. 35 S. 35(1) amended by Nos 43/1998 s. 36(d), 42/2007 s. 9. (1) If— S. 35(1)(a) amended by No. 87/2004 s. 22(1)(h). (a) a person is convicted of a Schedule 2 offence; and (b) a restraining order is or was made under Part 2 in respect of property for the purposes of automatic forfeiture in reliance on—
S. 36 amended by Nos 43/1998 s. 36(e), 63/2003 s. 14 (ILA s. 39B(1)). 36 Declaration that property has been forfeited s. 35B (1) If a court makes a restraining order in reliance on— S. 36(1)(a) amended by Nos 87/2004 s. 22(1)(k), 68/2009 s. 97(Sch. item 23.33(a)). (a) the conviction of an accused of a Schedule 2 offence; or S. 36(1)(b) amended by Nos 87/2004 s. 22(1)(k), 68/2009 s. 97(Sch. item 23.33(b)). (b) the charging or proposed charging of an accused with a Schedule 2 offence— a person may apply to the court that made that order for a declaration that property that was subject to the restraining order has been forfeited to the Minister under section 35 and the court, if satisfied that the property has been forfeited to the Minister under that section, must make a declaration accordingly. S. 36(2) inserted by No. 63/2003 s. 14. (2) An applicant under this section for a declaration that property has been forfeited is not required to give notice of the application to any person who has an interest in the property. Note to s. 36 inserted by No. 42/2007 s. 18(Sch. item 11). Note Section 14 provides that a restraining order may be made in respect of property or an interest in property. Pt 3 Div. 3 (Heading and ss 36A-–36G) inserted by No. 68/2010 s. 19. Division 3—Tainted property substitution forfeiture
S. 36A inserted by No. 68/2010 s. 19. 36A Interpretation s. 36A (1) For the purposes of this Division, property is not available for forfeiture if the accused does not have an interest in the property. (2) In this Division— applicant means a person who under section 16(2) may apply for a restraining order in relation to a Schedule 2 offence. S. 36B inserted by No. 68/2010 s. 19. 36B Application for tainted property substitution declaration s. 36B (1) If property is restrained for the purposes of automatic forfeiture and an application under section 20 is made for an exclusion order under section 22, an applicant may apply for a tainted property substitution declaration to— (a) the Supreme Court; or (b) the County Court. S. 36B(1A) inserted by No. 77/2013 s. 6. (1A) Subsection (1) applies only if an application under section 20(1) has been made— (a) within the period referred to in section 20(1A); or (b) where, under section 20(1B), the court has extended the period within which the application may be made—within the period as so extended and before the expiry of the period of 60 days referred to in section 35(1). (2) An application under subsection (1) must be made within 30 days after service on the applicant of notice of the application under section 20. (3) The court may extend the period within which an application under subsection (1) may be made, whether or not that period has expired, if it is in the interests of justice to do so.
S. 36Z inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23), amended by No. 79/2014 s. 47(a). 36Z Contravention of civil forfeiture restraining order s. 36Z A person who knowingly contravenes a civil forfeiture restraining order by disposing of, or otherwise dealing with, an interest in property to which the order applies is guilty of an indictable offence and liable to— (a) level 5 imprisonment (10 years maximum); or S. 36Z(b) amended by No. 79/2014 s. 47(b). (b) a level 5 fine (1200 penalty units maximum) or a fine not exceeding the value of the interest (as determined by the court), whichever is greater— or to both. S. 36ZA inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23). 36ZA Priority given to payment of restitution or compensation S. 36ZA(1) amended by No. 55/2014 s. 10. (1) If both a civil forfeiture restraining order and a restraining order for the purposes of section 15(1)(e) are made in relation to the same property and an order for restitution or compensation is made under the Sentencing Act 1991 in relation to an offence in reliance on which the civil forfeiture restraining order and the restraining order for the purposes of section 15(1)(e) are made or damages are awarded in relation to that offence, the State must ensure that the order for restitution, compensation or damages is satisfied, in accordance with section 36ZB, to the value of the restrained property, before civil forfeiture of the property which is subject to the civil forfeiture restraining order occurs.
V is a victim's award of restitution, compensation or damages to the extent that it has not been satisfied; A is the total of awards of restitution, compensation and damages in respect of the offence. Note Property is defined as including any interest in property. See section 3(1). Division 2—Civil forfeiture orders S. 37 substituted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23). 37 Application for civil forfeiture order (1) If a civil forfeiture restraining order is in force in respect of property, the DPP or a prescribed person, or a person belonging to a prescribed class of persons, may apply to the court which made the civil forfeiture restraining order for a civil forfeiture order in respect of the property. Note Only the Supreme Court or the County Court can make a civil forfeiture restraining order. s. 37 (2) The applicant must give written notice of the application under subsection (1) to every person who the applicant has reason to believe has an interest in the property. (3) The court may waive the requirement under subsection (2) to give notice if the court is satisfied either— (a) that any person who has an interest in the property is present before the court; or (b) that it is fair to waive the requirement despite any such person not being present. (4) At any time before the final determination of the application, the court may require the applicant to give notice of the application to any person, in any
(A) the property is located in Victoria; or (B) the person who has acquired the property is ordinarily resident in Victoria; and (b) there are reasonable grounds for that suspicion. (4) For the purposes of subsection (3)(b), in determining whether there are reasonable grounds for suspecting that property was not lawfully acquired, the court may have regard to one or more of the following— (a) the lawful income of a person with an interest in, or effective control of, the property; (b) any suspected unlawful activity of a person with an interest in, or effective control of, the property; (c) the prior ownership of the property and any suspected unlawful activity of a person, or persons, who previously owned the property; (d) the circumstances under which the property has come to the attention of Victoria Police; (e) any other relevant matter. S. 40J inserted by No. 79/2014 s. 16. 40J Notice of unexplained wealth restraining order to be given to persons affected s. 40J (1) If— (a) an unexplained wealth restraining order is made in respect of property of a person; and (b) notice had not been given to that person of the application for the unexplained wealth restraining order—
exclusion order, that applicant must give the applicant for the section 40ZD exclusion order written notice of the grounds on which the application for the section 40ZD exclusion order is to be contested. (8) If a person claiming an interest in the property is charged with an offence, any statement made or evidence given by the person in support of an application under this section is admissible against that person in a proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person. s. 40ZC (9) If a person claiming an interest in the property is charged with an offence, any information, document or thing obtained as a direct or indirect consequence of any statement made or evidence given by the person in support of an application under this section is admissible against that person in a proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person. (10) If— (a) a person applies under this section for a section 40ZD exclusion order; and (b) that person is charged with an offence relevant to the application for the section 40ZD exclusion order; and (c) that person has made an application under subsection (11)— the person need not give notice of the grounds on which the application for the section 40ZD exclusion order is made until the application under subsection (11) is determined. (11) The applicant for the section 40ZD exclusion order or any person referred to in subsection (5)(a) or (b) may apply to the court for an order that the
(1) In this section registrable property means property title to which is passed by registration on a register kept by a relevant registration authority. S. 41(2) amended by Nos 43/1998 s. 36(i), 79/2014 s. 17(1)(c). (2) If— (a) a court makes a forfeiture order or a civil forfeiture order in respect of property then, immediately on the making of the order; or S. 41(2)(b) amended by Nos 43/1998 s. 36(i), 55/2014 s. 31, 79/2014 s. 17(1)(a). (b) property is forfeited to the Minister by automatic forfeiture under section 35 or 36GA; or— S. 41(2)(ba) inserted by No. 79/2014 s. 17(1)(b). (ba) property is forfeited to the Minister by unexplained wealth forfeiture under section 40ZA— the property vests in the Minister subject to every mortgage, charge or encumbrance to which it was subject immediately before the order was made or the automatic forfeiture or unexplained wealth forfeiture occurred (as the case may be) and to— S. 41(2)(c) amended by No. 74/2010 s. 37(Sch. item 1(a)). (c) in the case of land, every interest registered, notified or saved under the Transfer of Land Act 1958 or the Property Law Act 1958. S. 41(2)(d) repealed by No. 74/2010 s. 37(Sch. item 1(b)). * * * * * S. 41(3) amended by Nos 43/1998 s. 36(i), 55/2014 s. 31, 79/2014 s. 17(2). (3) If registrable property is forfeited to the Minister under a forfeiture order or a civil forfeiture order or by automatic forfeiture under section 35 or 36GA or by unexplained wealth forfeiture under section 40ZA— s. 41
exclusion order or, if such an appeal is lodged, when the appeal is abandoned or finally determined. S. 44(3A) inserted by No. 77/2013 s. 10(1), amended by No. 55/2014 s. 32(5)(a). (3A) Despite subsection (2), the Minister is not prevented from taking the action specified in subsection (2)(a) or (b) after the end of the appeal period but before the final determination of an application under section 49, 51 or 53 for an exclusion order or an application under section 40A for a section 40B exclusion order unless— (a) the application has been made— S. 44(3A)(a)(i) amended by No. 55/2014 s. 32(5)(b). (i) within the period referred to in section 49(2), 51(2), 53(2) or 40A(2) (as the case may be); or S. 44(3A)(a)(ii) amended by No. 55/2014 s. 32(5)(c). (ii) after that period, with the leave of the court granted under section 49(3), 51(3), 53(3) or 40A(3) (as the case may be); or s. 44 S. 44(3A)(b) amended by No. 55/2014 s. 32(5)(d). (b) in the case of an application that has been made pursuant to leave granted under section 40A(4), 51(4) or 53(4) (as the case may be)—the leave was granted prior to the disposal of the property. S. 44(3B) inserted by No. 79/2014 s. 20(4). (3B) Despite subsection (2), the Minister is not prevented from taking action specified in subsection (2)(a) or (b) after the end of the appeal period but before the final determination of an application under section 40ZC for a section 40ZD exclusion order unless the application was made within the period referred to in section 40ZC(2)(b).
(b) in the absence of evidence to the contrary, is proof that the property has been disposed of in accordance with section 44. S. 45 (Heading) inserted by No. 55/2014 s. 16(1). 45 Relief from undue hardship s. 45 S. 45(1) amended by No. 55/2014 s. 16(2). (1) Subject to subsection (1A), if a court is satisfied that undue hardship may reasonably be likely to be caused to any person by a forfeiture order or a civil forfeiture order made by that court, the court— S. 45(1)(a) amended by No. 55/2014 s. 16(3). (a) may order that the person is entitled to be paid a specified amount out of the forfeited property, being an amount that the court thinks is necessary to prevent undue hardship to the person; and (b) may make ancillary orders for the purpose of ensuring the proper application of an amount so paid to a person who is under 18 years of age. S. 45(1A) inserted by No. 55/2014 s. 16(4). (1A) For the purposes of subsection (1), when determining whether undue hardship may be caused by a forfeiture order to the person convicted of the offence in relation to which the forfeiture order has been made, the court must not take into account the impact on that person of the sentence given for that offence. (2) An applicant for an order under subsection (1) must give written notice of the application to the applicant for the forfeiture order or the civil forfeiture order.
S. 46(1)(b)(ii) amended by No. 37/2014 s. 10(Sch. item 25.8). (ii) after the making of the order, the person surrenders to a police officer or is found or becomes for any other reason amenable to justice; and (iii) the person is acquitted, on appeal or otherwise; and (iv) the person pays to the State any conversion costs notified to the person by the Minister; or (c) if it is discharged by the court which hears an appeal against it under section 142; or (d) if a payment is made to discharge it in accordance with section 56 or 57. S. 46(2) amended by No. 43/1998 s. 18(a)(b). (2) If a forfeiture order is discharged in the manner referred to in paragraph (a), (b) or (c) of subsection (1), the person on whose application the forfeiture order was made must, as soon as practicable after the discharge, give written notice of the discharge to all persons whom the person has reason to believe may have had an interest in the property immediately before it was forfeited. (3) A notice under subsection (2) must include a statement to the effect that a person claiming to have had an interest in the property immediately before it was forfeited may make an application under section 55. 47 Discharge of automatic forfeiture in respect of an interest s. 47 (1) Automatic forfeiture under section 35 is discharged in respect of an interest in property— S. 47(1)(a) amended by No. 68/2009 s. 97(Sch. item 23.36). (a) if the conviction in reliance on which the automatic forfeiture occurred is subsequently set aside; or
(5) Any person notified under subsection (4) is entitled to appear and to give evidence at the hearing of the application but the absence of that person does not prevent the court from making an order under section 50. (6) If— (a) the person referred to in subsection (4)(a) proposes to contest an application for an exclusion order; and (b) the application is not made at the same time as the application for a forfeiture order— that person must give the applicant for the exclusion order written notice of the grounds on which the application is to be contested. 50 Determination of exclusion application—forfeiture order s. 50 (1) On an application made under section 49— S. 50(1)(a) amended by No. 42/2007 s. 10(1)(a). (a) if the court is not satisfied that the property in which the applicant claims an interest is not tainted property, the court may make an order excluding the applicant's interest in the property from the operation of the forfeiture order if satisfied that— S. 50(1)(a)(i) amended by No. 87/2004 s. 22(1)(l). (i) the applicant was not, in any way, involved in the commission of the Schedule 1 offence; and S. 50(1)(a)(ii) amended by Nos 87/2004 s. 22(1)(l), 68/2009 s. 97(Sch. item 23.38). (ii) where the applicant acquired the interest before the commission of the Schedule 1 offence, the applicant did not know that the accused would use, or intended to use, the property in, or in connection with, the commission of the Schedule 1 offence; and s. 50
S. 59(1)(a) amended by No. 68/2009 s. 97(Sch. item 23.43). (a) assess the value of the benefits derived by the accused in relation to the offence; and S. 59(1)(b) amended by No. 68/2009 s. 97(Sch. item 23.43). (b) order the accused to pay to the State a pecuniary penalty equal to the value as so assessed less, if the court thinks it desirable to take it into account, any amount paid or payable by way of restitution or compensation in relation to the same conviction— and must do so on an application under section 58(1) if section 68 applies in relation to the Schedule 2 offence. S. 59(2) amended by No. 68/2009 s. 97(Sch. item 23.43). (2) The accused is entitled to appear and to give evidence at the hearing of an application under section 58(1) or (2) but the absence of the accused does not prevent the court from making a pecuniary penalty order. S. 59(3) amended by No. 68/2009 s. 97(Sch. item 23.43). (3) If an application is made under section 58(2) to the court before which the accused was convicted of the offence before that court has passed sentence for the offence, that court may make a pecuniary penalty order at the time of passing sentence and for this purpose the court may, if it thinks it necessary to do so, defer the passing of sentence until it has determined the application for the order. S. 59(4) amended by No. 69/2009 s. 54(Sch. Pt 1 item 9.2). (4) On an application under section 58(1) or (2) a court may, subject to Part 3.10 of the Evidence Act 2008 and any rules of court, take into account in determining the application any material that it thinks fit including—
S. 68(1) amended by No. 87/2004 s. 19(j)(i)(ii). s. 68 (1) A prescribed person or a person belonging to a prescribed class of persons may apply to the Supreme Court for the application of this section in relation to a Schedule 2 offence. S. 68(2) amended by No. 87/2004 s. 19(k). (2) The DPP may apply to the Supreme Court or the County Court for the application of this section in relation to a Schedule 2 offence. S. 68(3) amended by Nos 43/1998 s. 36(x), 68/2009 s. 97(Sch. item 23.54(a)). (3) In assessing the value of the benefits derived by an accused in relation to an offence, the court must, on application under subsection (1) or (2), subject to subsection (4), treat as benefits— S. 68(3)(a) amended by No. 68/2009 s. 97(Sch. item 23.54(b)). (a) all property in which the accused had an interest at the time the first application is made under this Act in respect of the offence; and S. 68(3)(b) amended by No. 68/2009 s. 97(Sch. item 23.54(b)). (b) all expenditure of the accused within the period of 6 years immediately before the time the first application is made under this Act in respect of the offence— regardless of whether any benefits were actually derived and whether they were derived in relation to an offence, but must not include any property which has been forfeited to the Minister under this Act. S. 68(4) amended by No. 68/2009 s. 97(Sch. item 23.54(b)). (4) On an application under subsection (1) or (2), the Supreme Court or the County Court may refuse to treat as benefits specified property or expenditure if the Court is satisfied by the accused that— (a) in the case of property— (i) the property—
s. 69 S. 69(1) amended by No. 68/2009 s. 97(Sch. item 23.55). (1) If— (a) a court made a pecuniary penalty order under this Part in relation to an offence; and S. 69(1)(b) amended by No. 68/2009 s. 97(Sch. item 23.55). (b) in assessing the value of the benefits derived, the court took into account the making of a restitution or compensation order under the Sentencing Act 1991 against the accused in relation to the offence; and (c) an appeal against the restitution or compensation order is allowed— the DPP or the accused may apply to the court which made the pecuniary penalty order for a variation of that order, taking into account the successful appeal. S. 69(2) amended by No. 68/2009 s. 97(Sch. item 23.55). (2) An applicant under subsection (1) must give written notice of the application to the DPP or the accused, as the case may be. (3) On an application under subsection (1) the court may, if it considers it appropriate to do so, vary the pecuniary penalty order. S. 69A inserted by No. 68/2010 s. 22. 69A Variation of pecuniary penalty order after subsequent forfeiture (1) If— (a) a court made a pecuniary penalty order under this Part in relation to an offence; and (b) in assessing the value of the benefits derived, the court included or treated as benefits any property that is later forfeited to the Minister under this Act in relation to the same offence— the DPP or the accused may apply to the court which made the pecuniary penalty order for a
(b) in the prescribed form. 89 Report on execution of warrant etc. S. 89(1) amended by No. 63/2003 s. 24(1). (1) The person to whom a search warrant or a seizure warrant is issued must give a report in writing to the magistrate or judge who issued the warrant— (a) stating whether or not the warrant was executed; and (b) if the warrant was executed—setting out briefly the result of the execution of the warrant (including a brief description of anything seized); and (c) if the warrant was not executed—setting out briefly the reasons why the warrant was not executed; and S. 89(1)(d) amended by No. 63/2003 s. 24(2). (d) in the case of a search warrant, stating whether or not an occupier's notice has been served in connection with the execution of the warrant; and S. 89(1)(da) inserted by No. 63/2003 s. 24(3). (da) in the case of a seizure warrant, stating whether or not a notice of the execution of a seizure warrant has been given in accordance with section 88A; and S. 89(1)(e) amended by No. 63/2003 s. 24(4). (e) stating whether or not an embargo notice has been issued under section 93 in connection with the execution of the search warrant and describing briefly the property subject to the notice. (2) A report must be made within 10 days after the expiry of the warrant. (3) A person may apply to the magistrate or judge to whom a report has been given under subsection (1) for an order authorising the person to inspect the report if the person satisfies the magistrate or judge that he or she is—
S. 93(2) amended by No. 37/2014 s. 10(Sch. item 25.13). (2) A police officer executing a search warrant who is authorised by that warrant or section 92 to seize property may, if the property cannot, or cannot readily, be physically seized and removed, issue an embargo notice in the prescribed form— (a) by causing a copy of the notice to be served on the person in possession of the property; or (b) if that person cannot be located after all reasonable steps have been taken to do so, by affixing the copy to the property in a prominent position. S. 93(3) amended by No. 43/1998 s. 26(1). (3) A person who knows that an embargo notice relates to property and who— S. 93(3)(a) inserted by No. 43/1998 s. 26(1). (a) sells; or S. 93(3)(b) inserted by No. 43/1998 s. 26(1). (b) leases; or S. 93(3)(c) inserted by No. 43/1998 s. 26(1), amended by No. 37/2014 s. 10(Sch. item 25.13). (c) without the written consent of the police officer who issued the embargo notice, moves; or S. 93(3)(d) inserted by No. 43/1998 s. 26(1). (d) transfers; or S. 93(3)(e) inserted by No. 43/1998 s. 26(1). (e) otherwise deals with—
the property, or any part of the property, while the embargo notice is in force is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum) or a level 5 fine (1200 penalty units maximum) or both. s. 93 S. 93(4) amended by No. 68/2009 s. 97(Sch. item 23.59). (4) It is a defence to a prosecution for an offence against subsection (3) to prove that the accused moved the property or the part of the property for the purpose of protecting and preserving it. S. 93(5) amended by No. 43/1998 s. 26(2). (5) Despite anything in any other Act, a sale, lease, transfer or other dealing with property in contravention of this section is void. S. 93(6) amended by No. 68/2010 s. 57. (6) If an application for a restraining order or a civil forfeiture restraining order in respect of tainted property to which an embargo notice relates is not made within 21 days after the issue of an embargo notice, the embargo notice ceases to be in force at the end of that period but, if such an application is made, it continues in operation until that application is determined. 94 Search of persons under search warrant s. 94 S. 94(1) amended by No. 37/2014 s. 10(Sch. item 25.14). (1) A police officer executing a search warrant may, if the search warrant authorises him or her to do so, search any person found in or on the premises whom the police officer suspects on reasonable grounds of having on his or her person property of the kind described in the warrant. (2) A person must not be searched under this section except by a person of the same sex. S. 95 amended by No. 63/2003 s. 24(7). 95 Obstruction or hindrance of person executing search warrant A person must not, without reasonable excuse, obstruct or hinder a person executing a search warrant or a seizure warrant.
given within a reasonable time after the warrant was executed. (3) If a person requests a copy of any photograph or other record in accordance with subsection (1), the person who executed the search and inspection warrant must give the copy or record to the person who made the request, within 14 days after the request was made. S. 97K inserted by No. 63/2003 s. 27. 97K Defects in search and inspection warrant A search and inspection warrant is not invalidated by any defect, other than a defect which affects the substance of the warrant in a material particular. S. 97L inserted by No. 63/2003 s. 27. 97L Obstruction or hindrance of person executing search and inspection warrant A person must not, without reasonable excuse, obstruct or hinder a person executing a search and inspection warrant. Level 9 fine (60 penalty units maximum). Division 2—Search and seizure warrants S. 97M inserted by No. 63/2003 s. 27. 97M Application for search and seizure warrant (1) A prescribed person or a person who belongs to a prescribed class of persons may apply to a magistrate for a search and seizure warrant to be issued under this Division in respect of specified property that has been forfeited under this Act if the applicant believes on reasonable grounds that the property is, or may be within the next 72 hours, in or on specified premises. (2) An application for a search and seizure warrant must be made in writing.
(i) the name or names in which that account is held; and S. 118G (1)(b)(ia) inserted by No. 68/2010 s. 26(2). (ia) the type of account; and (ii) the balance of that account. S. 118G (1A) inserted by No. 68/2010 s. 26(3). (1A) An information notice issued under section 118E(3) may require the information referred to in subsection (1) only in respect of an account that relates to the mortgage or other security interest secured by the property specified in the information notice. (2) An information notice may only require a financial institution to give information to the law enforcement agency of which the person who issued the information notice is a member or an officer or an employee. S. 118H inserted by No. 63/2003 s. 29. 118H What must the information notice contain? s. 118H (1) An information notice must be in the prescribed form. (2) An information notice must specify— (a) the name of the person who has issued the information notice; and (b) the section of this Act under which that person is authorised to issue information notices; and S. 118H (2)(ba) inserted by No. 68/2010 s. 27. (ba) if the information notice is issued under section 118E(3), details of the property believed to be subject to a mortgage or other security interest in favour of the financial institution; and (c) the name of the financial institution; and
property to produce those documents to the Secretary. S. 120A(2) inserted by Nos 68/2010 s. 29(1), 79/2014 s. 36. (2) A prescribed person may request any person whom the prescribed person believes has possession or control of documents that relate to the maintenance and management of property in respect of which a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order has been made or that has been forfeited under this Act to produce those documents to the prescribed person. S. 120A(3) inserted by No. 68/2010 s. 29(1). (3) A request under subsection (1) or (2) may be made only if the person making the request reasonably believes that production of the documents is necessary for the purpose of maintaining and managing the property. S. 120B inserted by No. 63/2003 s. 31. 120B Document request A document request must— (a) be in the prescribed form; and S. 120B(b) amended by No. 68/2010 s. 29(2). (b) in the case of a document request made under section 120A(1), specify the basis on which the Secretary has responsibility for the property; and (c) specify the documents requested or the type of documents requested; and (d) state the purposes for which the documents are sought; and (e) state whether the documents will be provided to any other person and if so, in what circumstances; and (f) be given to the person who is requested to produce the documents. S. 120C inserted by No. 63/2003 s. 31. 120C Offences
(v) an order for civil forfeiture under section 38 (as in force immediately before its substitution by section 49 of that Act); (vi) an exclusion order under section 54(1) as in force immediately before its repeal; (vii) an order under section 54(2) as in force immediately before its repeal; (c) any refusal to make a civil forfeiture order under section 38 (as in force immediately before its substitution by section 49 of that Act); (d) any refusal to make an exclusion order under section 24 or 54(1) as in force immediately before their repeal; (e) any refusal to make an order under section 54(2) as in force immediately before its repeal. (2) Despite the commencement of Part 3 of the Confiscation Amendment Act 2010, this Act, as in force immediately before that commencement, continues to apply in respect of any old civil forfeiture matter as if Part 3 of the Confiscation Amendment Act 2010 had not been enacted. (3) Part 4 as substituted by section 49 of the Confiscation Amendment Act 2010 applies with respect to any proceedings for civil forfeiture commenced on or after the commencement of section 49 of that Act irrespective of whether the property to which the proceeding relates is or was reasonably suspected of being tainted property in relation to a Schedule 2 offence before, on or after that commencement.
Sch. 1 item 10(j) repealed by No. 52/2009 s. 17. * * * * * (k) section 2.6.1(1) (possession of instrument of betting); (l) section 3.4.68(1) or (2) (payments to venue operator by manufacturer or supplier of gaming equipment); Sch. 1 (m) section 3.5.28(1), (2), (3) or (4) (inducements, cheating etc.); (n) section 3.5.31 (extending credit for playing gaming machine); (o) section 4.7.5(1) or (2) (inducements, cheating etc.); (p) section 4.7.6 (extending credit etc.); Sch. 1 item 10(q) amended by No. 56/2010 s. 73. (q) section 8.2.2(b) (conducting session of bingo games otherwise than in accordance with Act); (r) section 10.5.17 (impersonation of inspector or commissioner); (s) section 10.5.18(1) or (2) (bribery of authorised person). Sch. 1 items 11–13 repealed by No. 114/2003 s. 12.1.3 (Sch. 6 item 3). * * * * * Sch. 1 item 13A inserted by No. 63/2003 s. 36(7). 13A. An offence against any of the following provisions of the National Parks Act 1975: Sch. 1 (a) section 45A(1) (taking fish or fishing bait for sale in marine national park or marine sanctuary); (b) section 45A(2) (taking fish or fishing bait for purposes other than sale without permit in marine national park or marine sanctuary);
(t) section 74E(1) (contravention of licence conditions etc.); Sch. 1 (u) section 76(3) (failure to release whale); (v) section 77(1) (action to be taken with respect to killing or taking of whale); (w) section 80 (breach of permit condition). Sch. 1 item 16 inserted by No. 43/1998 s. 38(j). 16. An offence against section 70 of the Crimes Act 1958 (possession of child pornography). Sch. 1 item 17 inserted by No. 44/1999 s. 33(2), amended by No. 63/2010 s. 81(Sch. item 2.1), substituted by No. 73/2011 s. 16. 17. An offence against any of the following provisions of the Sex Work Act 1994— (a) section 17(1) (publishing or causing to be published advertisement for sex work services); (b) section 17(2) (causing advertisement for sex work services to be broadcast or televised); (c) section 17(3) (publishing or causing to be published statement to induce persons to seek employment in sex work); (d) section 17(4) (advertising as provider of massage services); (e) section 22(1A) (sex work service providers to be licensed); (f) section 57(1) (licensee carrying on business with unlicensed partner). Sch. 1 item 18 inserted by No. 44/1999 s. 33(2), amended by No. 104/2003 s. 5(9). 18. An offence against section 123 of this Act (possession etc. of property suspected of being proceeds of crime), as in force immediately before its repeal by section 5(1) of the Crimes (Money Laundering) Act 2003. Sch. 1 item 19 inserted by No. 104/2003 s. 5(10). Sch. 1 19. An offence against section 195 of the Crimes Act 1958.
(b) section 153A(3) (bribery of a key official within the meaning of that Act) where— (i) only one offence is charged and the value of the money, property or value of any kind in respect of which the offence is committed is $50 000 or more; or (ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the value of the money, property or value of any kind in respect of which the offences are committed is $75 000 or more. Sch. 2 cl. 2C inserted by No. 63/2003 s. 38, repealed by No. 45/2004 s. 41(a). * * * * * Sch. 2 cl. 3 amended by Nos 63/2003 s. 39, 104/2003 s. 5(11). 3. An offence against section 122(1) of the Confiscation Act 1997 (money laundering) where the money or other property is proceeds of an offence committed in the circumstances referred to in item 1, 1A, 2, 2A, 2B, 2C, 8 or 9, as in force immediately before its repeal by section 5(1) of the Crimes (Money Laundering) Act 2003. Sch. 2 cl. 3A inserted by No. 104/2003 s. 5(12), amended by Nos 45/2004 s. 41(b), 69/2004 s. 59(a), 68/2010 s. 32(1). 3A. An offence against section 194(1), (2) or (3) of the Crimes Act 1958 where— Sch. 2 (a) only one offence against section 194(1), (2) or (3) of the Crimes Act 1958 is charged and the value of the property dealt with is $50 000 or more; or (b) more than one offence against section 194(1), (2) or (3) of the Crimes Act 1958 is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the value of the property dealt with is $75 000 or more.