189 Transitional—Justice Legislation Amendment (Confiscation and Other Matters) Act 2014 373 190 Transitional—Confiscation and Other Matters Amendment Act 2016 374 Schedules 376 Schedule 1—Offences—Forfeiture on court order 376 Schedule 2—Offences—Automatic forfeiture and civil forfeiture 388 Endnotes 403 1 General information 403 2 Table of Amendments 405 3 Amendments Not in Operation 412 4 Explanatory details 416
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 of Director repealed by No. 68/2010 s. 4(3).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 of forfeiture offence amended by No. 104/2003 s. 5(2), repealed by No. 87/2004 s. 5(b).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;
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 criminal activity inserted by No. 79/2014 s. 4(f). serious criminal activity has the meaning given in section 7C; S. 3(1) def. of serious drug offence inserted by No. 55/2014 s. 17(c), amended by No. 79/2014 s. 61(1). serious drug offence means an offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981 committed in the circumstances specified (if any)— (a) section 71 (trafficking in a drug or drugs of dependence—large commercial quantity); (b) section 72 (cultivation of narcotic plants—large commercial quantity); (c) section 79(1) or 80(3)(a) (conspiracy)—where the conspiracy is to commit an offence specified in paragraph (a) or (b); (d) section 80(1) (inciting)—where the offence that is incited is an offence specified in paragraph (a) or (b); (e) section 80(3)(b) (aiding, abetting etc. an offence outside Victoria)—where the offence that is aided, abetted,
S. 3(1) def. of trustee amended by No. 44/2001 s. 3(Sch. item 21.1). trustee means— (a) a trustee company within the meaning of the Trustee Companies Act 1984; (b) an official liquidator within the meaning of the Corporations Act; 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(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.
(b) a charge has been filed against the person for the offence— whether or not— (i) a summons to answer to the charge; or (ii) a warrant to arrest the person— has been issued and served. S. 7(2) amended by No. 68/2009 s. 97(Sch. item 23.10). (2) A reference in this Act to the withdrawing of a charge includes a reference to the discontinuance of a prosecution. S. 7A (Heading) amended by Nos 79/2014 s. 6(1), 27/2016 s. 5(1). S. 7A inserted by No. 68/2010 s. 36, amended by Nos 79/2014 s. 6(2), 27/2016 s. 5(2)(3) (ILA s. 39B(1)). 7A Meaning of derived property—civil forfeiture (1) In relation to civil forfeiture, a civil forfeiture restraining order, a civil forfeiture order or a civil forfeiture exclusion order, derived property means— (a) property used in, or in connection with, any unlawful activity; or (b) property derived or realised, or substantially derived or realised, directly or indirectly, from any unlawful activity; or (c) property derived or realised, or substantially derived or realised, directly or indirectly, from property of a kind referred to in paragraph (a) or (b). Note Property is defined as including any interest in property. See definition in section 3. S. 7A(2) inserted by No. 27/2016 s. 5(3). (2) Without limiting subsection (1), property is derived from property of a kind referred to in subsection (1)(a) or (b) if it is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using
S. 7C inserted by No. 79/2014 s. 7. 7C Meaning of serious criminal activity For the purposes of this Act, serious criminal activity means— (a) an act or omission or a course of conduct done or occurring in Victoria that constitutes one or more of the following— (i) a Schedule 2 offence; (ii) any other offence that is punishable by a term of imprisonment of 5 years or more and involves theft, fraud, obtaining financial benefit from the crime of another, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, sex work, production or dissemination of child pornography, drug cultivation, drug trafficking, forgery or homicide; S. 7C(a)(iia) inserted by No. 42/2015 s. 24. (iia) an offence against section 70AAAB, 70AAAC or 70AAAD of the Crimes Act 1958; (iii) an offence against section 7C, 59, 93, 94 or 96 of the Firearms Act 1996; (iv) an offence against section 195 of the Crimes Act 1958; (v) an offence of attempting to commit, or of conspiracy or incitement to commit, any offence referred to in the above paragraphs; (vi) an offence against a law of the Commonwealth punishable by a term of imprisonment of 5 years or more that
civil proceedings, other than proceedings in which damages are claimed that consist of or include damages in respect of personal injury. S. 12(4) amended by Nos 87/2004 s. 6(1), 68/2009 s. 97(Sch. item 23.13), 27/2016 s. 7. (4) The Magistrates' Court or the Children's Court must not, in relation to the conviction of an accused for a particular offence, make a forfeiture order in respect of property unless it is satisfied that the value of the property (together with the value of any other property that is the subject of any other undischarged forfeiture order made by that court in relation to that conviction) does not exceed the jurisdictional limit of the Magistrates' Court in civil proceedings, other than proceedings in which damages are claimed that consist of or include damages in respect of personal injury. S. 12(5) amended by Nos 87/2004 s. 6(1), 68/2009 s. 97(Sch. item 23.14), 27/2016 s. 7. (5) The Magistrates' Court or the Children's Court must not, in relation to the conviction of an accused for a particular offence, make a pecuniary penalty order against the accused unless it is satisfied that the amount payable under the order (together with the amount payable under any other undischarged pecuniary penalty order made against the accused by that court in relation to that conviction) does not exceed the jurisdictional limit of the Magistrates' Court in civil proceedings, other than proceedings in which damages are claimed that consist of or include damages in respect of personal injury. S. 12(5A) inserted by No. 79/2014 s. 8(2). (5A) The Magistrates' Court or the Children's Court must not make an unexplained wealth restraining order in respect of property unless it is satisfied that the value of the property does not exceed the jurisdictional limit of the Magistrates' Court in civil proceedings, other than proceedings in which damages are claimed that consist of or include damages in respect of personal injury.
(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.
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(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.
(f) an order directing any person whose property the restraining order relates to or any other person to furnish to such person as the court directs, within the period specified in the order, a statement, verified by the oath or affirmation of that person, setting out such particulars of the property to which the restraining order relates as the court thinks proper; (g) an order directing any relevant registration authority not to register any instrument affecting property to which the restraining order relates while it is in force except in accordance with the order; S. 26(5)(ga) inserted by No. 63/2003 s. 9(1), amended by No. 55/2014 s. 55(1). (ga) if the restraining order did not direct a trustee or a person holding a prescribed position referred to in section 14(3) to take control of property in accordance with section 14(3), an order directing a trustee or a person holding a prescribed position referred to in that section to take control of property at any later time specified in the order under subsection (1); S. 26(5)(h) amended by No. 55/2014 s. 55(2)(a). (h) if the restraining order directed a trustee or a person holding a prescribed position referred to in section 14(3) to take control of property— S. 26(5)(h)(i) amended by No. 55/2014 s. 55(2)(b). (i) an order regulating the manner in which the trustee or the person holding a prescribed position may exercise powers or perform duties under the restraining order; S. 26(5)(h)(ii) amended by No. 63/2003 s. 9(2)(a). (ii) an order determining any question relating to the property;
Pt 2A (Heading and ss 31A–31M) inserted by No. 63/2003 s. 10. S. 31A inserted by No. 63/2003 s. 10. 31A Definition In this Part— S. 31A def. of authorised member of the police force substituted as authorised police officer by No. 37/2014 s. 10(Sch. item 25.4). authorised police officer means— (a) a person authorised under section 31B; or (b) a person belonging to a class authorised under section 31B. S. 31B inserted by No. 63/2003 s. 10. 31B Chief Commissioner of Police may authorise police to apply for freezing orders For the purposes of applying for a freezing order under this Part, the Chief Commissioner of Police may authorise in writing the following— S. 31B(a) amended by No. 37/2014 s. 10(Sch. item 25.5). (a) a police officer; or S. 31B(b) amended by No. 37/2014 s. 10(Sch. item 25.5). (b) a class of police officer.
S. 31G(2)(f) amended by Nos 68/2010 s. 16(2), 37/2014 s. 10(Sch. item 25.5). (f) that the freezing order takes effect at the time that notice of the freezing order is given to the financial institution and lasts for 3 business days unless the financial institution is otherwise advised by a police officer that the order— (i) has ceased to have effect; or (ii) has been extended by court order under section 31I; and (g) the effect of sections 31K and 31L. S. 31G(3) amended by No. 68/2010 s. 16(2). (3) A notice under this section must not be given to the relevant financial institution more than 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? (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
(6) A reference in this section to disclosing the existence or operation of a freezing order to a person includes a reference to disclosing information to the person from which the person could reasonably be expected to infer the existence or operation of the freezing order. (7) An offence against subsection (1) is a summary offence. S. 31M (Heading) inserted by No. 104/2003 s. 5(5)(a). S. 31M inserted by No. 63/2003 s. 10, amended by No. 104/2003 s. 5(5)(b). 31M Freezing order to be disregarded for certain purposes If a financial institution is given, or has been given, notice of a freezing order, the fact that the freezing order has been made 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 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). (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—
S. 34B(1)(c) amended by No. 68/2009 s. 97(Sch. item 23.25(b)). (c) the court before which the accused was convicted of the offence. (2) The application under subsection (1) must— (a) be made in conjunction with an application for a forfeiture order; and S. 34B(2)(b) amended by Nos 87/2004 s. 22(1)(f), 68/2009 s. 97(Sch. item 23.25(b)). (b) specify property that the accused used or intended to use in or in connection with the commission of the Schedule 1 offence of which the accused is convicted; and (c) specify property which is to be substituted for the property referred to in paragraph (b) that— S. 34B(2)(c)(i) amended by Nos 87/2004 s. 22(1)(f), 68/2009 s. 97(Sch. item 23.25(b)). (i) is property in which the accused had an interest at the time that the Schedule 1 offence was committed; and (ii) is of the same nature or description as the property referred to in paragraph (b). Example to s. 34B(2)(c) amended by No. 68/2009 s. 97(Sch. item 23.26). Example An accused is convicted of a sexual offence against a child and, in the commission of that offence, the accused used a rented flat although the accused owned a flat at the time. The prosecution may apply to the court for a declaration that the flat owned by the accused is tainted property although the rented flat and the flat owned by the accused are not of equal value. (see section 34C(2)). S. 34C inserted by No. 63/2003 s. 12. 34C Court may make tainted property substitution declaration (1) Subject to subsection (2), a court may make a tainted property substitution declaration if the court is satisfied as to the following matters—
S. 35(1)(e) amended by No. 68/2009 s. 97(Sch. item 23.28(a)). (e) the conviction of the accused— whichever is later. 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. 35B(1) amended by No. 68/2009 s. 97(Sch. item 23.32). (1) The applicant must give written notice of the application under section 35A to the accused. S. 35B(2) amended by No. 68/2009 s. 97(Sch. item 23.32). (2) The court hearing the application under section 35A may waive the requirement to give notice if the accused is present before the court. S. 35B(3) amended by No. 68/2009 s. 97(Sch. item 23.32). (3) The accused is entitled to appear and to give evidence at the hearing of the application under section 35A but the absence of the accused does not prevent the court from making a declaration. S. 35C inserted by No. 63/2003 s. 13, amended by No. 87/2004 s. 22(1)(j). 35C Court may make declaration On an application under section 35A, the court may make a declaration if satisfied that the offence is a Schedule 2 offence. 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 (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—
(3) The court that made the civil forfeiture restraining order may make an order setting aside a civil forfeiture restraining order on the application of a person if the person gives undertakings satisfactory to the court concerning the person's property. (4) An order under subsection (2) or (3) may be made so as— (a) to set aside the civil forfeiture restraining order wholly or in part; and (b) to take effect— (i) on the making of the first-mentioned order; or (ii) at a specified time; or (iii) if relevant, on the payment of money or the transfer of any interest in property to the Minister; or (iv) on the happening of some other specified event. (5) When an order referred to in subsection (4) takes effect, the civil forfeiture restraining order ceases to be in force to the extent to which it is set aside. (6) An order under subsection (2) or (3) may be made on the application of— (a) the applicant for the civil forfeiture restraining order; or (b) any person to whose property the civil forfeiture restraining order relates or who has an interest in that property; or (c) a trustee, if the civil forfeiture restraining order directed the trustee to take control of property; or
(b) the court is satisfied that it is not reasonable to expect documentary evidence to exist because of the nature of the transfer of property, the effluxion of time or any other reason. S. 40U inserted by No. 79/2014 s. 16. 40U Application for substitution order (1) If— (a) a court has made a section 40S exclusion order excluding property (the excluded property) from the operation of an unexplained wealth restraining order; and (b) the owner of the excluded property owns or controls other property (the restrained property), not less than the value of the excluded property, which remains subject to the unexplained wealth restraining order but is unlikely to be able to vest in the Minister— the applicant for the unexplained wealth restraining order may apply to the court for a substitution order to substitute the excluded property for the restrained property for the purposes of unexplained wealth forfeiture. (2) An application under subsection (1) must be made within 30 days after the making of the section 40S exclusion order and must— (a) specify the excluded property; and (b) specify the restrained property; and (c) state why, in the opinion of the applicant, it is unlikely that the restrained property is unlikely to be able to vest in the Minister.
Pt 8 Div. 2 (Heading and ss 63–66) amended by Nos 43/1998 ss 22, 23, 36(v), 39(d), 54/2000 s. 25(2), 87/2004 s. 19(e)–(i), 42/2007 s. 18(Sch. item 18), 68/2009 s. 97(Sch. item 69/2009 s. 54(Sch. Pt 1 item 9.3), repealed by No. 68/2010 s. 53. * * * * * Division 3—General 67 Assessment of benefits S. 67(1) amended by Nos 43/1998 s. 36(w), 68/2009 s. 97(Sch. item 23.53(a)). (1) For the purposes of this Part, the value of the benefits derived by an accused in relation to an offence may include— S. 67(1)(aa) inserted by No. 43/1998 s. 24. (aa) any money actually received as a result of the commission of the offence, regardless of expenditures incurred in deriving that money; S. 67(1)(a) amended by No. 68/2009 s. 97(Sch. item 23.53(b)). (a) any property that was derived or realised, directly or indirectly, by the accused or another person, at the request or by the direction of the accused, as the result of the commission of the offence;
order under the Crimes (Confiscation of Profits) Act 1986 already applies to the property; or (b) in the case of expenditure— (i) the funds which were expended were lawfully acquired and were not derived or realised, directly or indirectly, by any person from any unlawful activity; or (ii) the expenditure was made to satisfy a pecuniary penalty order or an interstate pecuniary penalty order under this Act or the Crimes (Confiscation of Profits) Act 1986. Note to s. 68 inserted by No. 42/2007 s. 18(Sch. item 20). Note Property is defined as including any interest in property: see section 3(1). 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
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) 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(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
S. 97(2)(a) amended by No. 63/2003 s. 26(1). (a) property has been seized under a search warrant or a seizure warrant; and (b) an application has been made under this Act to a court for a forfeiture order or civil forfeiture order in respect of the property; and (c) the court refuses to make the order being sought— the court must make an order directing that the property be returned to the person from whose possession it was seized or to such other person as the Minister or a prescribed person authorised by the Minister for the purposes of this subsection directs forthwith or, if the refusal was a refusal to make a civil forfeiture order, at the time and in the circumstances specified in the order if the court considers that an application may yet be made for a forfeiture order. S. 97(3) amended by No. 63/2003 s. 26(2). (3) If property has been seized under a search warrant or a seizure warrant other than property seized under a warrant referred to in subsection (11) or sold under section 96, the person from whose possession the property was seized or any other person who claims an interest in the property may apply to the Magistrates' Court for an order— (a) directing that the property be returned to that person; or (b) directing that the person be allowed access to the property—
(b) a description of the property authorised to be inspected; and S. 97B(5)(c) amended by Nos 68/2010 s. 59(2), 79/2014 s. 29. (c) whether a restraining order, a civil forfeiture restraining order, an unexplained wealth restraining order or an embargo notice relates to the property or whether the property is forfeited under this Act; and (d) the address or other description of the premises in respect of which the warrant is issued. (6) Every search and inspection warrant issued under subsection (1) must be in the prescribed form. S. 97C inserted by No. 63/2003 s. 27. 97C Record of proceedings for search and inspection warrant (1) A magistrate who issues a search and inspection warrant must cause a record to be made of all relevant particulars of the grounds he or she has relied on to justify the issue of the warrant. (2) The magistrate may decline to record any matter that might disclose the identity of a person if the magistrate believes on reasonable grounds that to do so might jeopardise the safety of any person. S. 97D inserted by No. 63/2003 s. 27. 97D Announcement before entry On executing a search and inspection warrant, the person executing the warrant— (a) must announce that he or she is authorised by the warrant to enter the premises; and (b) must give any person at the premises an opportunity to allow entry to the premises before force is used to enter the premises. S. 97E inserted by No. 63/2003 s. 27. 97E Copy of search and inspection warrant to be given to occupier (1) A person executing a search and inspection warrant must—
S. 97V inserted by No. 63/2003 s. 27. 97V Defects in search and seizure warrant A search and seizure warrant is not invalidated by any defect, other than a defect which affects the substance of the warrant in a material particular. S. 97W inserted by No. 63/2003 s. 27. 97W Obstruction or hindrance of person executing search and seizure warrant A person must not, without reasonable excuse, obstruct or hinder a person executing a search and seizure warrant. Level 9 fine (60 penalty units maximum). 98 Order for examination S. 98(1) substituted by No. 43/1998 s. 27. (1) In this section, relevant person means the DPP or a prescribed person or a person belonging to a prescribed class of persons. S. 98(2) substituted by No. 63/2003 s. 28. (2) If a court is satisfied that— S. 98(2)(a) substituted by No. 87/2004 s. 20(1), amended by No. 68/2009 s. 97(Sch. item 23.62(a)), substituted by No. 68/2010 s. 60(a), amended by No. 55/2014 s. 38(1)(a). (a) an accused has been charged with or convicted of a Schedule 1 offence, a Schedule 2 offence or a serious drug offence or a court has made— (i) a restraining order against property under section 18 in relation to a Schedule 2 offence; or
S. 98(2)(a)(ia) inserted by No. 55/2014 s. 38(1)(b). (ia) a serious drug offence restraining order against property under section 18; or (ii) a civil forfeiture restraining order against property in relation to a Schedule 2 offence; and (b) it is appropriate to make an order under this section— the court may, on application by a relevant person, make an order for the examination before the court of any person concerning— S. 98(2)(c) amended by Nos 87/2004 s. 20(2)(a), 68/2009 s. 97(Sch. item 23.62(b)). (c) the affairs of the accused or any other person, including the nature and location of— S. 98(2)(c)(i) amended by Nos 87/2004 s. 20(2)(b), 68/2009 s. 97(Sch. item 23.62(b)). (i) any property in which the accused or person has or may have an interest; or S. 98(2)(c)(ii) amended by No. 42/2007 s. 15. (ii) any property which the applicant for the order believes on reasonable grounds to be tainted property or restrained property; and (d) issues connected with the effective management and maintenance of any property referred to in paragraph (c), including any income, expenditure or liabilities in relation to the property.
(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 (Heading) substituted by No. 27/2016 s. 23. S. 120A inserted by No. 63/2003 s. 31, amended by No. 68/2010 s. 29(1) (ILA s. 39B(1)). 120A Document request relating to maintenance and management of property (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.
the relevant jurisdiction, may make an interstate forfeiture order or interstate restraining order. 126 Effect of registration (1) A registered interstate forfeiture order is, for the purposes of this Act (other than Parts 5, 6 and 7 and section 142) to be taken to be a forfeiture order made under section 33 at the time of registration. S. 126(2) amended by No. 43/1998 s. 31. (2) A registered interstate restraining order is, for the purposes of this Act (other than sections 19, 20, 26, 27, 72 and 142) to be taken to be a restraining order made under section 18. 127 Duration of registration An interstate forfeiture order or an interstate restraining order ceases to be registered under this Act if— (a) it ceases to be in force in the State or Territory in which it was made; or (b) its registration is cancelled under this Act. 128 Cancellation of registration (1) The registration of an interstate forfeiture order or an interstate restraining order may be cancelled by the Supreme Court or an officer of the Supreme Court prescribed by the rules of the Supreme Court if— (a) registration was improperly obtained; or (b) particulars of any amendments made to the order, or of any ancillary orders or directions made by a court, are not given to the Supreme Court in accordance with the requirements of the rules of the Supreme Court. (2) The registration of an interstate forfeiture order or an interstate restraining order may be cancelled by
S. 142(5)(ba) inserted by No. 42/2007 s. 16(3), amended by Nos 68/2010 s. 65(4)(a), 55/2014 s. 46. (ba) the making of an exclusion order under section 21, 22, 22A, 50(1), 52(1) or 54(1)— S. 142(5)(c) amended by No. 87/2004 s. 22(2)(v)(ii), repealed by No. 68/2010 s. 65(4)(b). * * * * * in the same manner as if the order or refusal were, or were part of, a sentence imposed in respect of the offence. S. 142(6) amended by Nos 87/2004 s. 22(2)(w), 68/2010 s. 65(5). (6) On appeal, a civil forfeiture order, a civil forfeiture exclusion order or a refusal to make a civil forfeiture exclusion order may be confirmed, discharged or varied or the matter may be remitted for re-hearing to the Supreme Court or the County Court, as the case may be, with or without any direction in law. Note to s. 142 inserted by No. 42/2007 s. 16(4). Note In this section, references to any appeal being made in a manner as if it were, or were part of, a sentence imposed in respect of an offence are to enable the adoption of existing appeal procedures. In the case of an order or refusal made in the Magistrates' Court, the requirements and procedures set out in Subdivision 1 of Division 4 of Part 4 of that Act and Schedule 6 to that Act, insofar as they are relevant, apply. In the case of an order or refusal made in the County Court or the Supreme Court, the requirements and procedures set out in Part 6 of that Act and the relevant Rules of Court apply. 143 Provision of legal aid (1) If a court is satisfied at any time that—
S. 143(1)(a) amended by Nos 68/2010 s. 66(a)(b), 79/2014 s. 41(1). (a) a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order has been made in respect of property of a person and the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order, as the case requires, is in force; and S. 143(1)(b) amended by Nos 18/2005 s. 18(Sch. 1 item 17.2), 68/2010 s. 66(b), 79/2014 s. 41(1)(b). (b) the person is in need of legal assistance in respect of any legal proceeding, whether civil or criminal, and whether in respect of a charge to which the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order, as the case requires, relates or otherwise, because the person is unable to afford the full cost of obtaining legal assistance from a private law practice or private legal practitioner (within the meaning of the Legal Aid Act 1978) from unrestrained property or income of the person— the court may order Victoria Legal Aid to provide legal assistance to the person, on any conditions specified by the court, and may adjourn the legal proceeding until such assistance has been provided. (2) Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal assistance in accordance with an order made under subsection (1). (3) If— (a) a court makes an order under this section; and (b) a condition of the provision of legal assistance is that the cost or part of the cost, and any interest payable on the whole or the part of the cost, to Victoria Legal Aid of
S. 180 inserted by No. 68/2010 s. 68. 180 Regulations dealing with transitional matters (1) The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of the Confiscation Amendment Act 2010, including the repeals and amendments made by that Act. (2) Regulations made under this section may— (a) have a retrospective effect to a day on or from the date that the Confiscation Amendment Act 2010 receives the Royal Assent; and (b) be of limited or general application; and (c) leave any matter or thing to be decided by a specified person or specified class of persons; and (d) provide for the exemption of persons or proceedings or a class of persons or proceedings from any of the regulations made under this section. (3) Regulations made under this section have effect despite anything to the contrary— (a) in any Act (other than the Confiscation Amendment Act 2010 or the Charter of Human Rights and Responsibilities Act 2006); or (b) in any subordinate instrument.
Sch. 1 item 5(b) amended by No. 6/2005 s. 13(4)(b). (b) section 9 (exhibition of unclassified, RC, X 18+, R 18+ and MA 15+ films); Sch. 1 item 5(c) amended by Nos 60/1998 s. 16(a), 6/2005 s. 13(4)(c). (c) section 15(1) or (2) (selling unclassified, RC and X 18+ films); Sch. 1 item 5(d) amended by No. 6/2005 s. 13(4)(d). (d) section 23(1) or (2) (possession or copying of unclassified, RC and X 18+ films for purpose of sale or exhibition); Sch. 1 item 5(da) inserted by No. 60/1998 s. 16(b), amended by No. 6/2005 s. 13(4)(e). (da) section 23A(4) or (5) (possession or copying of commercial quantity of X 18+ films); (e) section 24(1) (making objectionable film); (f) section 25(1) (sale of unclassified or RC publication); (g) section 31(1) (possession or copying of unclassified or RC publication for purpose of sale); (h) section 32(1) (producing objectionable publication); (i) section 34 (sale or demonstration of computer game); (j) section 36(1) (sale or demonstration of unclassified or RC computer game); (k) section 45(1) or (2) (possession or copying of unclassified or RC computer game for purpose of sale or demonstration);
Sch. 1 item 10(b) substituted by No. 56/2014 s. 61(1). (b) section 2.2.8 (advertising of unauthorised gambling prohibited); Sch. 1 items 10(c)-(i) repealed by No. 56/2014 s. 61(2). * * * * * Sch. 1 item 10(j) repealed by No. 52/2009 s. 17. * * * * * Sch. 1 item 10(k) repealed by No. 56/2014 s. 61(2). * * * * * (l) section 3.4.68(1) or (2) (payments to venue operator by manufacturer or supplier of gaming equipment); (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 item 15(a) amended by No. 43/1998 s. 38(a). (a) section 41(1) or (2) (taking or possessing etc. endangered wildlife) as in force immediately before the commencement of section 14 of the Wildlife (Amendment) Act 1997; Sch. 1 item 15(b) amended by No. 43/1998 s. 38(b). (b) section 42(1) or (2) (taking or possessing etc. notable wildlife) as in force immediately before the commencement of section 14 of the Wildlife (Amendment) Act 1997; Sch. 1 item 15(c) amended by No. 43/1998 s. 38(c). (c) section 43(1) or (2) (taking or possessing etc. protected wildlife) as in force immediately before the commencement of section 14 of the Wildlife (Amendment) Act 1997; Sch. 1 item 15(d) amended by No. 43/1998 s. 38(d). (d) section 43A (possessing unlawfully taken wildlife) as in force immediately before the commencement of section 14 of the Wildlife (Amendment) Act 1997; Sch. 1 item 15(e) amended by No. 43/1998 s. 38(e). (e) section 45 (taking eggs of protected wildlife) as in force immediately before the commencement of section 14 of the Wildlife (Amendment) Act 1997; Sch. 1 item 15(f) amended by No. 43/1998 s. 38(f). (f) section 46 (trapping wild duck etc.) as in force immediately before the commencement of section 14 of the Wildlife (Amendment) Act 1997; Sch. 1 item 15(g) amended by No. 43/1998 s. 38(g). (g) section 47(1) (taking protected wildlife in close season) as in force immediately before the commencement of section 14 of the Wildlife (Amendment) Act 1997; Sch. 1 item 15(h) amended by No. 43/1998 s. 38(h). (h) section 48(1) (setting dog on wildlife not being game) as in force immediately before the commencement of section 14 of the Wildlife (Amendment) Act 1997;
(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). 19. An offence against section 195 of the Crimes Act 1958. Sch. 2 (Heading) substituted by No. 87/2004 s. 22(2)(z). 1. An offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981: Sch. 2 cl. 1(a) substituted by No. 61/2001 s. 11(1)(a). (a) section 71 (trafficking in a quantity of a drug or drugs of dependence that is not less than the large commercial quantity applicable to that drug or those drugs); Sch. 2 cl. 1(ab) inserted by No. 61/2001 s. 11(1)(a). (ab) section 71AA (trafficking in a quantity of a drug or drugs of dependence that is not less than the commercial quantity applicable to that drug or those drugs); Sch. 2 cl. 1(ac) inserted by No. 63/2003 s. 37(1), amended by No. 2/2016 s. 17(1)(a). (ac) section 71AB(1) (trafficking in a drug of dependence to a child) where— (i) the drug of dependence is a drug specified in Part 3 of Schedule Eleven to that Act; and
an offence referred to in item 3. Sch. 2 cl. 4A inserted by No. 69/2004 s. 59(b). 4A. An offence of conspiracy to commit an offence referred to in item 10 in the circumstances referred to in that item. Sch. 2 cl. 5 amended by Nos 63/2003 s. 40, 45/2004 s. 41(b), 69/2004 s. 59(a). 5. An offence of attempting to commit any offence in the circumstances referred to in item 1, 1A, 2, 2A, 2B, 2C (as in force immediately before its repeal by section 41(a) of the Racing and Gaming Acts (Amendment) Act 2004), 3, 8, 9 or 10. 6. A continuing criminal enterprise offence within the meaning of Part 2B of the Sentencing Act 1991 for which the offender is liable to be sentenced under that Part as a continuing criminal enterprise offender. Sch. 2 cl. 7 substituted by No. 63/2003 s. 41. 7. The law offence of conspiracy to defraud where— (a) only one offence is charged and the value of the property, financial advantage or economic loss in respect of which the offence is committed is $50 000 or more; or (b) 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 property, financial advantage or economic loss in respect of which the offences are committed is $75 000 or more. Sch. 2 cl. 8 inserted by No. 63/2003 s. 41. 8. The law offence of misconduct in public office where— (a) only one offence is charged and the value of the property in respect of which the offence is committed is $50 000 or more; or (b) 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
Assent Date: 23.10.01 Commencement Date: S. 11 on 1.1.02: s. 2(2) Current State: This information relates only to the provision/s amending the Confiscation Act 1997 Criminal Justice Legislation (Miscellaneous Amendments) Act 2002, No. 35/2002 Assent Date: 18.6.02 Commencement Date: S. 28(Sch. item 2) on 19.6.02: s. 2(1) Current State: This information relates only to the provision/s amending the Confiscation Act 1997 Confiscation (Amendment) Act 2003, No. 63/2003 Assent Date: 30.9.03 Commencement Date: Ss 4–42 on 1.12.03: s. 2(2) Current State: This information relates only to the provision/s amending the Confiscation Act 1997 Crimes (Money Laundering) Act 2003, No. 104/2003 Assent Date: 9.12.03 Commencement Date: Ss 5, 6 on 1.1.04: s. 2(3) Current State: This information relates only to the provision/s amending the Confiscation Act 1997 Fisheries (Further Amendment) Act 2003, No. 108/2003 Assent Date: 9.12.03 Commencement Date: S. 8 on 10.12.03: s. 2(1) Current State: This information relates only to the provision/s amending the Confiscation Act 1997 Gambling Regulation Act 2003, No. 114/2003 Assent Date: 16.12.03 Commencement Date: S. 12.1.3(Sch. 6 item 3) on 1.7.04: Government Gazette 1.7.04 p. 1843 Current State: This information relates only to the provision/s amending the Confiscation 1997 Racing and Gaming Acts (Amendment) Act 2004, No. 45/2004 Assent Date: 16.6.04 Commencement Date: S. 41 on 1.7.04: s. 2(3) Current State: This information relates only to the provision/s amending the Confiscation Act 1997 Sustainable Forests (Timber) Act 2004, No. 48/2004