S. 3(1) def. of AUSTRAC CEO inserted by No. 68/2010 s. 4(1). AUSTRAC CEO means the Chief Executive Officer of the Australian Transaction Reports and Analysis Centre continued in existence by section 209 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth; 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 of automatic forfeiture offence substituted by No. 63/2003 s. 4(1), amended by No. 104/2003 s. 5(2), repealed by No. 87/2004 s. 5(b).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; building society means a society registered or incorporated as a building society, housing society or similar society under an Act or the laws of another State or a Territory; S. 3(1) def. of business day inserted by No. 68/2010 s. 4(2). business day means a day other than a Saturday, a Sunday or a public holiday appointed under the Public Holidays Act 1993; cash dealer has the same meaning as in the Financial Transaction Reports Act 1988 of the Commonwealth; S. 3(1) def. of civil forfeiture substituted by No. 68/2010 s. 35(2)(a). civil forfeiture means forfeiture under, or in accordance with, Part 4; S. 3(1) def. of civil forfeiture exclusion order inserted by No. 68/2010 s. 35(1). civil forfeiture exclusion order means— (a) a section 36V exclusion order; or (b) a section 40B exclusion order; S. 3(1) def. of civil forfeiture offence amended by No. 104/2003 s. 5(2), repealed by No. 87/2004 s. 5(b). * * * * *
S. 3(1) def. of civil forfeiture order substituted by No. 68/2010 s. 35(2)(b). civil forfeiture order means an order for forfeiture made under Division 2 of Part 4; S. 3(1) def. of civil forfeiture restraining order inserted by No. 68/2010 s. 35(1). civil forfeiture restraining order means an order made under section 36M; conversion costs means costs referred to in section 135; corresponding law, in relation to this Act or a provision of this Act, means a law of the Commonwealth or another State or a Territory that is declared by the regulations to be a law that corresponds to this Act or the provision; court means Supreme Court or County Court or, subject to section 12, the Magistrates' Court or Children's Court, as the case requires; credit union means a credit union or credit society carrying on business under an Act or the laws of another State or a Territory; S. 3(1) def. of defendant repealed by No. 68/2009 s. 97(Sch. item 23.3). * * * * *
S. 3(1) def. of derived property inserted by No. 42/2007 s. 4(1), amended by No. 68/2009 s. 97(Sch. item 23.4), substituted by No. 68/2010 s. 35(4), amended by No. 79/2014 s. 4(a). derived property— (a) in relation to civil forfeiture, a civil forfeiture restraining order, a civil forfeiture order or a civil forfeiture exclusion order or in relation to unexplained wealth forfeiture or an unexplained wealth restraining order, has the meaning given in section 7A; and (b) in any other case, has the meaning given in section 7B; S. 3(1) def. of Director repealed by No. 68/2010 s. 4(3). * * * * * disposal order means an order made under section 78; S. 3(1) def. of document request inserted by No. 63/2003 s. 5(1), substituted by No. 68/2010 s. 4(4). document request means a request for documents made under Division 6 of Part 13; S. 3(1) def. of domestic partner inserted by No. 42/2007 s. 4(1), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 7.1). domestic partner of a person means— (a) a person who is in a registered relationship with the person; or (b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not
(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 freezing order inserted by No. 63/2003 s. 5(1). freezing order means an order made under section 31F; S. 3(1) def. of gift amended by Nos 68/2009 s. 97(Sch. item 23.5), 68/2010 s. 35(6), 79/2014 s. 4(b). gift, in relation to property, includes a transfer for a consideration significantly less than the greater of— (a) the prevailing market value of the property; or (b) the consideration paid by the accused or, in relation to civil forfeiture or unexplained wealth forfeiture, the transferor of the property; S. 3(1) def. of information notice inserted by No. 63/2003 s. 5(1). information notice means a notice issued under section 118D or 118E;
interest, in relation to property, means— (a) a legal or equitable estate or interest in the property; or (b) a right, power or privilege over, or in connection with, the property; interstate forfeiture order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition; interstate offence means an offence against the laws of the Commonwealth or another State or a Territory, being an offence in relation to which an interstate forfeiture order or an interstate pecuniary penalty order may be made under a corresponding law of the Commonwealth or that State or Territory; interstate pecuniary penalty order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition; interstate restraining order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition; S. 3(1) def. of law enforcement agency amended by Nos 63/2003 s. 4(3), 68/2010 s. 35(3)(b), 37/2014 s. 10(Sch. item 25.1(b)), 79/2014 s. 4(c). law enforcement agency means— (a) the DPP; or (b) Victoria Police; or (ba) any other authority or person responsible for the performance of functions or activities under this Act directed to—
pecuniary penalty order means an order made under Part 8; S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 25.1(a)). police officer has the same meaning as in the Victoria Police Act 2013; S. 3(1) def. of premises amended by No. 63/2003 s. 4(4). premises includes vessel, aircraft, vehicle and any place (other than a public place), whether built upon or not; proceeds, in relation to an offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence; production order means an order made under section 101; property means real or personal property of every description, whether situated within or outside and whether tangible or intangible, and includes any interest in any such real or personal property; S. 3(1) def. of document amended by No. 79/2014 s. 4(d). property-tracking document means— (a) a document relevant to— (i) identifying, locating or quantifying property in which a person has an interest; or (ii) identifying or locating any document necessary for the transfer of property in which a person has an interest; or (b) a document relevant to— (i) identifying, locating or quantifying tainted property; or
search warrant means (except in Division 2 of Part 13) a search warrant issued under Part 11 and in Division 2 of Part 13 means a search warrant issued under that Division; S. 3(1) def. of Secretary inserted by No. 63/2003 s. 5(1), amended by No. 20/2015 s. 7. Secretary means the Secretary to the Department of Justice and Regulation; S. 3(1) def. of section 36V exclusion order inserted by No. 68/2010 s. 35(1). section 36V exclusion order means an order made under section 36V excluding property or an interest in property from a civil forfeiture restraining order; S. 3(1) def. of section 40B exclusion order inserted by No. 68/2010 s. 35(1). section 40B exclusion order means an order made under section 40B excluding property or an interest in property from a civil forfeiture order; S. 3(1) def. of section 40S exclusion order inserted by No. 79/2014 s. 4(f). section 40S exclusion order means an order made under section 40S excluding property or an interest in property from an unexplained wealth restraining order; S. 3(1) def. of section 40ZD exclusion order inserted by No. 79/2014 s. 4(f). section 40ZD exclusion order means an order made under section 40ZD excluding property or an interest in property from an unexplained wealth forfeiture; S. 3(1) def. of seizure warrant inserted by No. 63/2003 s. 5(1). seizure warrant means a warrant issued under section 79A;
S. 3(1) def. of serious drug offender inserted by No. 55/2014 s. 17(c). serious drug offender means a person declared under section 89DI of the Sentencing Act 1991 to be a serious drug offender; S. 3(1) def. of spouse inserted by No. 42/2007 s. 4(1). spouse of a person means a person to whom that person is married; S. 3(1) def. of sufficient consideration inserted by No. 42/2007 s. 4(3). sufficient consideration, in relation to property, means consideration that reflects the market value of the property and does not include— (a) consideration arising from the fact of a family relationship between the transferor and transferee; (b) if the transferor is the spouse or domestic partner of the transferee, the making of a deed in favour of the transferee; (c) a promise by the transferee to become the spouse or domestic partner of the transferor; (d) consideration arising from love and affection; (e) transfer by way of gift;
(d) the person has been charged with the offence but, before the charge is finally determined, the person absconds. (2) For the purposes of this Act, a person who, because of subsection (1), is deemed to have been convicted of an offence, is deemed to have committed that offence. 5 Meaning of absconds For the purposes of this Act, a person is deemed to abscond if— (a) the person is charged with an offence but dies without the charge having been determined; or (b) the person is charged with an offence, a warrant to arrest the person is issued in relation to that charge and one of the following occurs— (i) the person dies without the warrant being executed; or (ii) at the end of the period of 6 months commencing on the day on which the warrant is issued— (A) the person cannot be found; or (B) the person is, for any other reason, not amenable to justice and, if the person is outside , extradition proceedings are not on foot; or (iii) at the end of the period of 6 months commencing on the day on which the warrant is issued— (A) the person is, by reason of being outside , not amenable to justice; and
S. 11(e) inserted by No. 43/1998 s. 9. (e) using the property to obtain or extend credit; and S. 11(f) inserted by No. 43/1998 s. 9. (f) using credit secured against the property. Note to s. 11 inserted by No. 42/2007 s. 18(Sch. item 1). Note Property is defined as including any interest in property: see section 3(1). 12 Jurisdiction (1) The jurisdiction given to the Children's Court by this Act is exercisable by the Criminal Division of that Court. S. 12(1A) inserted by No. 63/2003 s. 6. (1A) Despite the jurisdictional limit of the Magistrates' Court in civil proceedings, the Magistrates' Court may make a freezing order in respect of an account held with a financial institution, irrespective of the amount held in that account. (2) The Magistrates' Court or the Children's Court must not make a restraining order or a forfeiture order in respect of real property. S. 12(2A) inserted by No. 79/2014 s. 8(1). (2A) The Magistrates' Court or the Children's Court must not make an unexplained wealth restraining order in respect of real property. (3) The Magistrates' Court or the Children's Court must not, in relation to a particular offence, make a restraining order in respect of property unless it is satisfied that the value of the property (together with the value of any other property in respect of which a restraining order has been granted in relation to that offence) does not exceed the
property or the property is tainted property in relation to that offence; or (d) a person has been convicted of a Schedule 2 offence and that person has an interest in the property or the property is tainted property in relation to that offence. S. 16(2A) inserted by No. 87/2004 s. 8(1), repealed by No. 68/2010 s. 41(1), new s. 16(2A) inserted by No. 55/2014 s. 20(1). (2A) The DPP or a prescribed person, or a person belonging to a prescribed class of persons, may apply, without notice, to the Supreme Court or the County Court for a serious drug offence restraining order in respect of property if— (a) a member of the police force or a person authorised by or under an Act to prosecute the relevant type of offence believes that— (i) within the next 48 hours a person will be charged with a serious drug offence; and (ii) that person has an interest in the property; or (b) a person has been charged with a serious drug offence and that person has an interest in the property; or (c) a person has been convicted of a serious drug offence and that person has an interest in the property. S. 16(3) amended by Nos 87/2004 s. 8(2), 55/2014 s. 20(2). (3) An application under subsection (2) or (2A) for the purposes of automatic forfeiture may only be made before the end of the relevant period in relation to the conviction.
S. 16(4) amended by Nos 87/2004 s. 8(3), 37/2014 s. 10(Sch. item 25.2(b)(ii)), 55/2014 s. 20(3)(a). (4) An application under subsection (1), (2) or (2A) must be supported by an affidavit of— S. 16(4)(a) substituted by No. 37/2014 s. 10(Sch. item 25.2(b)(i)). (a) a police officer; or (b) a person authorised by or under an Act to prosecute the relevant type of offence— setting out any relevant matters and stating that the police officer or person believes the following matters and setting out the grounds on which the police officer or person holds those beliefs— S. 16(4)(c) amended by No. 68/2009 s. 97(Sch. item 23.16). (c) in the case of an application made in reliance on the proposed charging of the accused with an offence, that the accused will be so charged within the next 48 hours; and S. 16(4)(d) amended by No. 68/2009 s. 97(Sch. item 23.16), substituted by No. 55/2014 s. 20(3)(b). (d) that— (i) in the case of an application under subsection (1) or (2)—the accused has an interest in the property or the property is tainted property (as the case may be); and (ii) in the case of an application under subsection (2A)—the accused has an interest in the property; and (e) if the restraining order is being sought for a purpose referred to in paragraph (a), (d) or (e) of section 15(1), that—
(i) a forfeiture order may be made in respect of the property; or S. 16(4)(e)(ii) amended by No. 68/2009 s. 97(Sch. item 23.16). (ii) a pecuniary penalty order may be made against the accused; or (iii) an order for restitution or compensation may be made under the Sentencing Act 1991. S. 16(5) inserted by No. 87/2004 s. 8(4), substituted by No. 68/2010 s. 41(2), amended by No. 79/2014 s. 11. (5) An application for a civil forfeiture restraining order or an unexplained wealth restraining order in relation to property or an interest in property does not preclude an application under this section in relation to the same property or interest in property. S. 16(6) inserted by No. 68/2010 s. 7, amended by No. 55/2014 s. 20(4). (6) An application under subsection (1), (2) or (2A) in relation to property or an interest in property may be made more than once, whether on the same grounds or different grounds, for any purpose referred to in section 15(1). S. 16(7) inserted by No. 68/2010 s. 7, amended by No. 55/2014 s. 20(5). (7) An application under subsection (1) in relation to property or an interest in property does not preclude an application under subsection (2) or (2A) in relation to the same property or interest in property. S. 16(8) inserted by No. 68/2010 s. 7, amended by No. 55/2014 s. 20(6). (8) An application under subsection (2) in relation to property or an interest in property does not preclude an application under subsection (1) or (2A) in relation to the same property or interest in property. S. 16(9) inserted by No. 55/2014 s. 20(7). (9) An application under subsection (2A) in relation to property or an interest in property does not preclude an application under subsection (1) or (2) in relation to the same property or interest in property.
S. 19E(b) substituted by No. 104/2003 s. 5(4). (b) any proceeding under this Act— but is not otherwise admissible in evidence against that person. S. 19E(2) inserted by No. 68/2010 s. 12. (2) Any information, document or other thing obtained as a direct or indirect consequence of making a statement in a declaration of property interests given in response to a notice under section 19B is admissible against that person in— (a) a proceeding for making a false or misleading statement in the declaration; or (b) any proceeding under this Act— but is not otherwise admissible in evidence against that person. 20 Application for exclusion from restraining order S. 20(1) amended by Nos 68/2009 s. 97(Sch. item 23.18), 68/2010 s. 42, substituted by No. 55/2014 s. 24(1). (1) If a court makes a restraining order against property under section 18, the following persons may apply to that court for an order under section 21, 22 or 22A— (a) in the case of an application for an order under section 21 or 22—any person claiming an interest in the property, including the accused; (b) in the case of an application for an order under section 22A—any person claiming an interest in the property, other than the accused. S. 20(1A) inserted by No. 87/2004 s. 10(1). (1A) An application under subsection (1) must be made—
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(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
Example The court may direct the carrying out of repairs on restrained premises. Note to s. 26 inserted by No. 42/2007 s. 18(Sch. item 6). Note Property is defined as including any interest in property: see section 3(1). 27 Duration and setting aside of restraining order S. 27(1) amended by Nos 87/2004 s. 14(1)(a)(b), 68/2009 s. 97(Sch. item 23.22 (a)(b)), 55/2014 s. 27(1). (1) If, at the end of the period of 48 hours after the making of a restraining order (other than a serious drug offence restraining order) in reliance on the proposed charging of an accused with a Schedule 1 offence or a Schedule 2 offence, the accused has not been charged with the offence or a related offence that is a Schedule 1 offence or a Schedule 2 offence, whether or not in the same Schedule as the original offence, the order ceases to be in force at the end of that period. S. 27(2) amended by No. 43/1998 s. 14(1), substituted by No. 87/2004 s. 14(2), repealed by No. 68/2010 s. 45(1), new s. 27(2) inserted by No. 55/2014 s. 27(2). (2) If— (a) a serious drug offence restraining order is made in reliance on the proposed charging of an accused with a serious drug offence; and (b) at the end of the period of 48 hours after the making of the serious drug offence restraining order, the accused has not been charged with the offence or a related offence that is a serious drug offence— the serious drug offence restraining order ceases to be in force at the end of that period.
S. 35(2) amended by Nos 43/1998 s. 36(d), 68/2010 s. 18(2), 77/2013 s. 5(1). (2) If an application under section 20 in respect of restrained property is still pending on the expiry of the period of 60 days referred to in subsection (1), the property is forfeited to the Minister— (a) if the application is refused or dismissed, at the end of the period during which the person may appeal against the refusal or dismissal or, if such an appeal is lodged, when the appeal is abandoned or finally determined without the order having been made; or (b) if the application is withdrawn or struck out, on that withdrawal or striking out. S. 35(2A) inserted by No. 77/2013 s. 5(2). (2A) For the purposes of subsections (1) and (2), an application under section 20 is not pending unless 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 subsection (1). S. 35(3) amended by No. 87/2004 s. 22(1)(h). (3) If a person is, by reason of section 4(1)(d), deemed to have been convicted of a Schedule 2 offence, the DPP may apply to the Supreme Court or the County Court for an order declaring the date of conviction for the purposes of this section. S. 35(4) amended by No. 87/2004 s. 22(1)(h). (4) On an application under subsection (3), the court must not make an order declaring the date of conviction of a person of a Schedule 2 offence unless it is satisfied that the person has absconded.
S. 36K(4) amended by No. 79/2014 s. 15. (4) An application for a restraining order or an unexplained wealth restraining order in relation to property or an interest in property does not preclude an application for a civil forfeiture restraining order being made in relation to the same property or interest in property. (5) An application for a civil forfeiture restraining order may be made more than once. (6) Without limiting the operation of this section, an application for a civil forfeiture restraining order may be made— S. 36K(6)(a) amended by No. 55/2014 s. 5(3)(a). (a) in relation to different property or a different interest in property in respect of the same Schedule 2 offence or offences; or S. 36K(6)(b) amended by No. 55/2014 s. 5(3)(b). (b) in relation to the same property or interest in property in respect of a different Schedule 2 offence or different Schedule 2 offences. S. 36L inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23). 36L Procedure on application for civil forfeiture restraining order (1) On an application under section 36K, if the Supreme Court or the County Court, as the case requires, having regard to the matters referred to in subsection (2), is satisfied that the circumstances of the case justify the giving of notice to a person affected, the court may direct an applicant for a civil forfeiture restraining order to give notice of the application for that order to any person whom the court has reason to believe has an interest in the property that is the subject of the application.
(5) Any person notified under subsection (1) 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 a civil forfeiture restraining order. (6) The court may— (a) order that the whole or any part of the proceeding be heard in closed court; or (b) order that only persons or classes of persons specified by it may be present during the whole or any part of the proceeding; or (c) make an order prohibiting the publication of a report of the whole or any part of the proceeding or of any information derived from the proceeding. (7) The court must cause a copy of any order made under subsection (6) to be posted on a door of the court house or in another conspicuous place where notices are usually posted at the court house. (8) A person must not contravene an order posted under subsection (7). Penalty: Imprisonment for 12 months or 1000 penalty units. S. 36M inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23), amended by No. 55/2014 s. 6(2) (ILA s. 39B(1)). 36M Determination of application for civil forfeiture restraining order (1) On an application under section 36K for a civil forfeiture restraining order, the Supreme Court or the County Court, as the case requires, must make a civil forfeiture restraining order if it is satisfied that—
S. 36R inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23). 36R Offences S. 36R(1) amended by No. 37/2014 s. 10(Sch. item 25.8). (1) A person who is given a notice under section 36O must not, without reasonable excuse, fail to give the declaration of property interests required by that notice to a police officer within 14 days after the notice is given to the person. Penalty: Level 9 fine (60 penalty units maximum). * * * * * (3) A person who is given a notice under section 36O must not make a statement in the declaration of property interests required by that notice that is false or misleading in a material particular. Penalty: Level 9 fine (60 penalty units maximum). S. 36S inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23). 36S Court directions to provide information (1) If a person who has been given a notice under section 36O— (a) is convicted of an offence under section 36R(1) or (3); and (b) has not, prior to that conviction, provided the information that should have been provided in a declaration of property interests as required by the notice under section 36O— the court which convicts that person must direct the person to provide the court with the information that should have been provided in a declaration of property interests.
68 Assessment of benefits in relation to Schedule 2 offences S. 68(1) amended by No. 87/2004 s. 19(j)(i)(ii). (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 (Heading) inserted by No. 68/2010 s. 21. 69 Variation of pecuniary penalty order after successful appeal against restitution or compensation order 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
Magistrates' Court Act 1989 extend and apply to warrants under this Part. S. 88 amended by No. 63/2003 s. 22(2). 88 Expiry of warrant A search warrant or a seizure warrant ceases to have effect— (a) at the end of the period of 1 month after its issue; or (b) if it is recalled and cancelled by the magistrate or judge who issued it; or (c) when it is executed— whichever occurs first. S. 88A inserted by No. 63/2003 s. 23. 88A Notice of execution of seizure warrant (1) The applicant for a seizure warrant must give notice of the execution of that warrant to all persons known to have an interest in the property seized under the warrant. (2) A notice under subsection (1) must be— (a) given as soon as practicable, but not more than 7 days after the execution of the seizure warrant; and (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— (a) the owner or occupier of premises upon which the warrant was executed; or (b) a person who has an interest in property seized in the execution of the warrant; or (c) a person who has an interest in property subject to an embargo notice issued under section 93 in connection with the execution of the warrant. S. 90 amended by No. 63/2003 s. 24(5)(a). 90 Absence etc. of magistrate or judge who issued warrant
includes a reference to disclosing information to the person from which the person could reasonably be expected to infer the existence of the information notice. (6) An offence against subsection (1) is a summary offence. (7) It is not an offence under this section to disclose the existence of an information notice if the existence of the information notice has been made known in any proceedings in open court. S. 118L inserted by No. 63/2003 s. 29. 118L Immunity from suit No civil proceeding lies against— (a) a financial institution; or (b) a person who is an officer, employee or agent of that financial institution acting in the course of that person's duties as an officer, employee or agent— in relation to any action taken or information given by the institution or person in compliance with an information notice. S. 118M (Heading) substituted by No. 104/2003 s. 5(8)(a). S. 118M inserted by No. 63/2003 s. 29, amended by No. 104/2003 s. 5(8)(b). 118M Giving of information notice to be disregarded for certain purposes If a financial institution is given, or has been given, an information notice, the fact that the information notice has been issued must be disregarded for the purposes of the application of section 194 or 195A of the Crimes Act 1958 in relation to the institution. Division 4—Reports of suspect transactions 119 Reports of suspect transactions
S. 119(1) amended by No. 68/2010 s. 28(1). (1) A cash dealer who is a party to a transaction and who has reasonable grounds for suspecting that information that the cash dealer has concerning the transaction— (a) may be relevant to an investigation, or prosecution, of a person for an offence against a law of ; or (b) may be of assistance in the enforcement of this Act or the regulations made under this Act— must, as soon as practicable, prepare a report of the transaction and communicate the information contained in it to the AUSTRAC CEO. S. 119(2) amended by No. 68/2010 s. 28(2). (2) Subsection (1) applies only where the cash dealer is not required to report the transaction under Division 2 of Part II of the Financial Transaction Reports Act 1988 of the Commonwealth or under section 41 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth. (3) The report must— S. 119(3)(a) amended by No. 68/2010 s. 28(1). (a) be in the form approved by the AUSTRAC CEO in writing for the purposes of section 16 of the Financial Transaction Reports Act 1988 of the Commonwealth; (b) contain the reportable details of the transaction; (c) set out the grounds for the suspicion referred to in subsection (1); be signed by the cash dealer. S. 119(4) amended by No. 68/2010 s. 28(1). (4) The communication to the AUSTRAC CEO of the information contained in the report must be made—
(2) The owner of a document or thing returned to the Chief Commissioner of Police in accordance with arrangements under subsection (1) is entitled to its return. (3) The right referred to in subsection (2) is enforceable by action in detinue in a court of competent jurisdiction. Pt 13 Div. 6 (Heading and ss inserted by No. 63/2003 s. 31. Division 6—Document requests S. 120A inserted by No. 63/2003 s. 31, amended by No. 68/2010 s. 29(1) (ILA s. 39B(1)). 120A When a document request may be made (1) If, under a memorandum of understanding entered into under section 78A, the Secretary has responsibility for property, the Secretary may request any person whom the Secretary believes has possession or control of documents that relate to the maintenance and management of that 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. 162 inserted by No. 63/2003 s. 42. 162 Confiscation (Amendment) Act 2003—disposal orders transitional provision Part 10, as amended by sections 16 and 17 of the Confiscation (Amendment) Act 2003, applies with respect to any forfeiture offence of which a person is convicted after the commencement of those sections, irrespective of when the offence is alleged to have been committed. S. 163 inserted by No. 63/2003 s. 42. 163 Confiscation (Amendment) Act 2003—property seized under other Acts transitional provision Sections 95A to 95E apply to any property seized under a warrant issued under section 465 of the Crimes Act 1958 or section 81 of the Drugs, Poisons and Controlled Substances Act 1981, irrespective of when the warrant was executed. S. 164 inserted by No. 63/2003 s. 42. 164 Confiscation (Amendment) Act 2003—examination orders transitional provision Section 98(2), as substituted by section 28 of the Confiscation (Amendment) Act 2003, applies only in relation to examination orders for which an application was made after the commencement of section 28 of that Act. S. 165 inserted by No. 63/2003 s. 42. 165 Confiscation (Amendment) Act 2003—document requests transitional provisions (1) Division 6 of Part 13 applies in relation to property in respect of which a restraining order was made, irrespective of when the restraining order was made. (2) Division 6 of Part 13 applies in relation to property seized under a warrant issued under this Act, section 465 of the Crimes Act 1958 or section 81 of the Drugs, Poisons and Controlled Substances Act 1981, irrespective of when the warrant was executed.
(6) An exclusion order made, or purported to be made, under section 54(1) and in force, or purportedly in force, immediately before the commencement of section 12(1) of the Confiscation Amendment Act 2007 that would have been validly made if section 54(1) as amended by section 12(1) of that Act had been in operation at the time the relevant order was made or purported to be made has, and is deemed always to have had, the same force and effect as it would have had if section 54(1) as amended by section 12(1) of that Act had been in operation at that time. (7) Nothing in this section affects the rights of the parties in the proceeding known as Director of Public Prosecutions v. Phan Thi Le (No. 3723 of 2006) in the Supreme Court of Victoria, Court of Appeal. S. 177 inserted by No. 42/2007 s. 17. 177 Existing applications for exclusion Amendment Act 2007 (1) Despite section 14 of the Interpretation of Legislation Act 1984, any application for an exclusion order made before, on or after 15 February 2007 but not determined before the commencement of the Confiscation Amendment Act 2007 is to be determined— (a) in the case of an application for an exclusion order to be made under section 21, as if section 21 as amended by section 5(1) of the Confiscation Amendment Act 2007 had been in operation at the time the application was made; and (b) in the case of an application for an exclusion order to be made under section 22, as if section 22 as amended by section 6(1) of the Confiscation Amendment Act 2007 had
S. 187 inserted by No. 82/2012 s. 157. 187 Transitional—Independent Broad-based Commission Act 2011 (1) Any application made by the Director that has not been determined before the commencement day is taken, on and from the commencement day, to be an application made by the IBAC Commissioner. (2) Any monitoring order in force immediately before the commencement day that specifies the Office of Police Integrity as the law enforcement agency to which the information is to be given continues in force, on and from the commencement day, and is taken to specify that the law enforcement agency to which the information is to be given is the IBAC within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011. (3) In this section— commencement day means the day on which section 16 of the Independent Broad-based Anti-corruption Commission Amendment (Investigative Functions) Act 2012 comes into operation; Director means the Director, Police Integrity under section 7 of the Police Integrity Act 2008 as in force immediately before its repeal; IBAC Commissioner means the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011.