S. 3(1) def. of automatic forfeiture offence substituted by No. 63/2003 s. 4(1), amended by No. 104/2003 s. 5(2), repealed by No. 87/2004 s. 5(b). * * * * * S. 3(1) def. of automatic forfeiture quantity inserted by No. 63/2003 s. 5(1). automatic forfeiture quantity has the same meaning as it has in the Drugs, Poisons and Controlled Substances Act 1981; S. 3(1) def. of bank amended by No. 11/2001 s. 3(Sch. item 13). bank means— (a) the Reserve Bank of ; or (b) an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth; (c) a person who carries on State banking within the meaning of section 51(xiii) of the Constitution of the Commonwealth; s. 3 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 of civil forfeiture offence amended by No. 104/2003 s. 5(2), repealed by No. 87/2004 s. 5(b).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 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;
S. 10 (Heading) inserted by No. 68/2009 s. 97(Sch. item 23.11). S. 10 amended by No. 68/2009 s. 97(Sch. item 23.12). 10 Property in which the accused has an interest s. 10 For the purposes of an application under this Act in relation to an offence, property in which the accused has an interest includes— S. 10(a) amended by No. 68/2009 s. 97(Sch. item 23.12). (a) any property that is, on the day when the first application is made under this Act in respect of that offence, subject to the effective control of the accused; and S. 10(b) amended by No. 68/2009 s. 97(Sch. item 23.12). (b) any property that was the subject of a gift from the accused to another person— (i) within the period of 6 years before the first application made under this Act in respect of that offence; and S. 10(b)(ii) amended by No. 68/2010 s. 37. (ii) at any time if the application is made for the purposes of automatic forfeiture. 11 Meaning of dealing with property For the purposes of this Act, dealing with property of a person includes— (a) if a debt is owed to that person, making a payment to any person in reduction of the amount of the debt; and (b) removing the property from ; and (c) receiving or making a gift of the property; and S. 11(d) amended by No. 43/1998 s. 9. (d) creating or assigning an interest in the property; and
S. 12(8) amended by Nos 87/2004 s. 6(2), 68/2010 ss 6, 38(1). (8) The County Court has jurisdiction under this Act to make any order, other than an order under section 141A, irrespective of the value of the property or the amount payable. S. 12(9) inserted by No. 68/2010 s. 38(2). (9) The Magistrates' Court and the Children's Court do not have jurisdiction to make a civil forfeiture restraining order, a civil forfeiture exclusion order or a civil forfeiture order. Note to s. 12 inserted by No. 42/2007 s. 18(Sch. item 2). Note Property is defined as including any interest in property: see section 3(1). 13 Act to bind Crown s. 13 (1) This Act binds the Crown not only in right of Victoria but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities. (2) Nothing in this Act renders the Crown in any of its capacities liable to be prosecuted for an offence. _______________ Pt 2 (Heading) amended by No. 68/2010 s. 39. 14 Restraining orders s. 14 (1) A restraining order is an order that no property or interest in property, that is property or an interest to which the order applies, is to be disposed of, or otherwise dealt with by any person except in the manner and circumstances (if any) specified in the order.
(a) has an interest in the property; and (b) believes that any other person has an interest in the property. S. 19B(1A) inserted by No. 68/2010 s. 8(1). (1A) If the person making the declaration of property interests states that the person has an interest in the property, the person must also state in the declaration the nature and extent of that interest, including— (a) in relation to a mortgage, the current value of the debt secured by the mortgage; (b) in relation to any security interest other than a mortgage, the current value of the debt secured by the interest in the property. S. 19B(2) amended by No. 68/2010 s. 8(2). (2) If the person making the declaration of property interests believes that any other person has an interest in the property, the person making the declaration must state in the declaration to the best of his or her knowledge the name and address of every other person who has an interest in the property. Notes to s. 19B inserted by No. 68/2010 s. 8(3). Notes 1 An interest in property is defined in section 3(1) as meaning— (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. 2 The nature of an interest in land, for example, may be an interest in fee simple, a leasehold interest or a security interest such as a mortgage. 3 The extent of an interest, for example, may be the whole of the property or some lesser specified interest, such as a half-interest as a tenant in common. S. 19C inserted by No. 63/2003 s. 8. 19C Offences
circumstances such as not to arouse a reasonable suspicion, that the property was tainted property; and S. 21(b)(i)(D) substituted by No. 42/2007 s. 5(2), amended by No. 68/2009 s. 97(Sch. item 23.19). (D) the applicant's interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 1 offence or the date that the restraining order was made in relation to the property; and S. 21(b)(i)(E) amended by No. 68/2009 s. 97(Sch. item 23.19). (E) where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration; or S. 21(b)(ii) amended by No. 42/2007 s. 5(1)(b). (ii) the court is satisfied as specified in paragraph (a)(i) but not satisfied as specified in paragraph (a)(ii), the court may make an order excluding the applicant's interest in the property from the operation of the restraining order if satisfied that— S. 21(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. 22(b) amended by Nos 42/2007 s. 6(1)(b), 68/2009 s. 97(Sch. item 23.20). (b) where the application is made by a person other than the accused, the court may make an order excluding the applicant's interest in the property from the operation of the restraining order— S. 22(b)(i) amended by No. 42/2007 s. 6(3). (i) if the court is not satisfied that the property in which the person claims an interest is not tainted property or derived property but is satisfied that— S. 22(b)(i)(A) amended by No. 87/2004 s. 11(c). (A) the applicant was not, in any way, involved in the commission of the Schedule 2 offence; and S. 22(b)(i)(B) amended by Nos 87/2004 s. 11(c), 68/2009 s. 97(Sch. item 23.20). (B) where the applicant acquired the interest before the commission, or alleged commission, of the Schedule 2 offence, the applicant did not know that the accused would use, or intended to use, the property in, or in connection with, the commission of the Schedule 2 offence; and s. 22 S. 22(b)(i)(C) amended by Nos 87/2004 s. 11(c), 42/2007 s. 6(3). (C) where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the Schedule 2 offence, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property or derived property; and S. 22(b)(i)(D) substituted by No. 42/2007 s. 6(4), amended by No. 68/2009 s. 97(Sch. item 23.20). (D) the applicant's interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 2 offence or the date that
(b) is deemed to be tainted property for the purposes of this Act. Division 2—Automatic forfeiture after conviction 35 Automatic forfeiture of restrained property on conviction of certain offences s. 35 S. 35(1) amended by Nos 43/1998 s. 36(d), 42/2007 s. 9. (1) If— S. 35(1)(a) amended by No. 87/2004 s. 22(1)(h). (a) a person is convicted of a Schedule 2 offence; and (b) a restraining order is or was made under Part 2 in respect of property for the purposes of automatic forfeiture in reliance on— S. 35(1)(b)(i) amended by No. 68/2009 s. 97(Sch. item 23.28(a)). (i) the conviction of the accused of that offence; or S. 35(1)(b)(ii) amended by Nos 87/2004 s. 22(1)(h), 68/2009 s. 97(Sch. item 23.28(b)). (ii) the charging or proposed charging of the accused with that offence or a related offence that is a Schedule 2 offence; and S. 35(1)(c) amended by No. 68/2010 s. 18(1)(a). (c) the restrained property is not the subject of an exclusion order under section 22; and S. 35(1)(ca) inserted by No. 68/2010 s. 18(1)(b). (ca) the restrained property is not the subject of an application under section 20 that is still pending— the restrained property, subject to any declaration under section 23, is forfeited to the Minister on the expiry of 60 days after— s. 35
Division 3—Orders for exclusion from civil forfeiture orders S. 40A inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23). 40A Application for exclusion from civil forfeiture order s. 40A (1) Subject to subsections (2) and (4), if property is forfeited to the Minister under section 38, a person who claims to have had an interest in the property immediately before it was forfeited may apply to the court that made the relevant civil forfeiture order under section 38 for a section 40B exclusion order excluding the interest in the property from the civil forfeiture order. Note Only the Supreme Court or the County Court can make a civil forfeiture order under section 38. (2) Subject to subsection (3), the application must be made before the end of the period of 60 days commencing on the day on which the property is forfeited to the Minister. S. 40A(3) amended by No. 77/2013 s. 9(1). (3) Subject to subsection (5A), the court that made the relevant civil forfeiture order under section 38 may grant a person leave to apply after the end of the period referred to in subsection (2) if it is satisfied that the delay in making the application is not due to neglect on the part of the applicant. (4) Except with the leave of the court, an application for a section 40B exclusion order in relation to an interest in property must not be made by a person who was given notice of— (a) proceedings on the application for the civil forfeiture restraining order; or s. 40A (b) the making of the civil forfeiture restraining order. S. 40A(5) amended by No. 77/2013 s. 9(1). (5) Subject to subsection (5A), the court may grant a person leave under subsection (4) to make an application if it is satisfied that the person's failure to seek to have that person's interest in the
hearing of the application but the absence of that person does not prevent the court from making an order under section 52. (8) If the DPP proposes to contest an application for an exclusion order, the DPP must give the applicant written notice of the grounds on which the application is to be contested. 52 Determination of exclusion application—automatic forfeiture s. 52 S. 52(1) amended by No. 42/2007 s. 11(1). (1) On an application made under section 51, the court may make an order excluding the applicant's interest in property from the operation of section 35— S. 52(1)(a) amended by No. 42/2007 s. 11(2). (a) if the court is not satisfied that the property in which the applicant claims an interest is not tainted property or derived property but is satisfied that— S. 52(1)(a)(i) amended by No. 87/2004 s. 22(1)(m). (i) the applicant was not, in any way, involved in the commission of the Schedule 2 offence; and S. 52(1)(a)(ii) amended by Nos 87/2004 s. 22(1)(m), 68/2009 s. 97(Sch. item 23.40). (ii) where the applicant acquired the interest before the commission of the Schedule 2 offence, the applicant did not know that the accused would use, or intended to use, the property in, or in connection with, the commission of the Schedule 2 offence; and S. 52(1)(a)(iii) amended by Nos 87/2004 s. 22(1)(m), 42/2007 s. 11(2). (iii) where the applicant acquired the interest at the time of or after the commission of the Schedule 2 offence, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property or derived property; and
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; S. 67(1)(b) amended by No. 68/2009 s. 97(Sch. item 23.53(b)). (b) any benefit, service or financial advantage provided for the accused or another person, at the request or by the direction of the accused, as the result of the commission of the offence; S. 67(1)(c) amended by No. 68/2009 s. 97(Sch. item 23.53(b)). (c) any increase in the total value of property in which the accused has an interest in the period beginning immediately before the commission of the offence and ending at some time after the commission of the offence that the court is not satisfied was due to causes unrelated to the commission of the offence; S. 67(1)(d) amended by No. 68/2009 s. 97(Sch. item (d) subject to subsection (3), any profits derived by the accused, or by another person on behalf of the accused or at the request or by the direction of the accused, from a depiction of the offence or an expression of the thoughts, opinions or emotions of the accused regarding the offence in— (i) a film, slide, video tape, video disc or any other form of recording from which a visual image can be produced; or (ii) a record, tape, compact disc or any other form of recording from which words or sounds can be produced; or (iii) a book, newspaper, magazine or other written or pictorial matter; or s. 67 (iv) a radio or television production; or (v) a live entertainment of any kind;
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. 68(4) (a)(i)(A) amended by No. 68/2009 s. 97(Sch. item 23.54(b)). (A) was lawfully acquired by the accused; and
S. 78(3)(b) amended by No. 68/2009 s. 97(Sch. item 23.58). (b) ceases to have effect if on appeal the conviction is set aside. __________________ Pt 10A (Heading and ss 78A, 78B) inserted by No. 63/2003 s. 18. S. 78A inserted by No. 63/2003 s. 18. 78A Memorandum of understanding s. 78A (1) The Secretary and a law enforcement agency may enter into a memorandum of understanding that provides for the transfer from the law enforcement agency to the Secretary of responsibilities and powers under this Act in relation to the management of property— (a) seized under this Act; or S. 78A(1)(b) amended by No. 68/2010 s. 56. (b) in respect of which a restraining order or a civil forfeiture restraining order has been made; or (c) seized under a warrant under— (i) section 465 of the Crimes Act 1958; or (ii) section 81 of the Drugs, Poisons and Controlled Substances Act 1981. (2) A memorandum of understanding may— (a) refer to— (i) specified property; or (ii) a specified class of property; or
(2) The law enforcement agency to which information is given under a monitoring order must give that information to a prescribed person authorised by the Minister for the purposes of this subsection. (3) A person to whom the existence or operation of a monitoring order is disclosed in accordance with subsection (1) or to whom information is given under subsection (2) must not— (a) while he or she is a person of a kind referred to in paragraph (a), (b), (c) or (d) of subsection (1) or a person referred to in subsection (2), disclose the existence or operation of the order to any person except another person of that kind for the purpose of— (i) if the disclosure is made by a person of a kind referred to in paragraph (a) or (b) of subsection (1) or a person referred to in subsection (2)—the performance of his or her duties; or (ii) if the disclosure is made by an officer or agent of the financial that the order is complied with or obtaining legal advice or representation in relation to the order; or (iii) if the disclosure is made by a legal practitioner—giving legal advice or providing representation in relation to the order; or (b) when he or she is no longer a person of a kind referred to in paragraph (a), (b), (c) or (d) of subsection (1) or a person referred to in subsection (2), make a record of, or disclose, the existence or operation of the order in any circumstances.
Reports Act 1988 of the Commonwealth or under section 41 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth. s. 119 (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— S. 119(4)(a) amended by No. 68/2010 s. 28(1). (a) by giving the AUSTRAC CEO a copy of the report; or S. 119(4)(b) amended by No. 68/2010 s. 28(1). (b) in any other manner and form approved by the AUSTRAC CEO. (5) An approval for the purposes of subsection (4)(b)— s. 119 (a) must be in writing; and (b) may relate to a specified cash dealer or a specified class of cash dealers. S. 119(6) amended by Nos 43/1998 s. 30, 68/2010 s. 28(1), 37/2014 s. 10(Sch. item 25.26). (6) A cash dealer who communicates information to the AUSTRAC CEO under subsection (1) or Division 2 of Part II of the Financial Transaction Reports Act 1988 of the Commonwealth must, if requested to do so by a police officer, give any
(3) The fact that criminal proceedings have been instituted or commenced is not a ground on which a court may stay proceedings under this Act. S. 133A inserted by No. 43/1998 s. 32. 133A Costs (1) Costs may only be awarded in accordance with this section. S. 133A(1A) inserted by No. 68/2010 s. 30(2). (1A) Nothing in subsection (1) affects the power of the court to award costs in any circumstances not referred to in this section. (2) If— (a) a person brings, or appears at, proceedings under this Act before a court in order— (i) to prevent a forfeiture order or restraining order from being made against property of the person; or (ii) to have property of the person excluded from a forfeiture order or restraining order; and (b) the person is successful in those proceedings; and (c) the court is satisfied that the person was not involved in any way in the commission of the offence in respect of which the forfeiture order or restraining order was sought or made— the court may order the applicant for the forfeiture order or restraining order to pay all costs incurred by the person in connection with the proceedings or any part of those costs that is determined by the court. S. 133A(3) amended by No. 68/2010 s. 63(c). (3) If a person brings, or appears at, proceedings under this Act before the Supreme Court in order—
committed before the commencement of that section. (2) Item 7 of Schedule 2, as amended by section 41 of the Confiscation (Amendment) Act 2003, applies only with respect to an offence alleged to have been committed after the commencement of that section. (3) Items 8 and 9 of Schedule 2 apply only with respect to an offence alleged to have been committed after the commencement of section 41 of the Confiscation (Amendment) Act 2003. (4) For the purposes of this section, if an offence is alleged to have been committed between two dates and section 41 of the Confiscation (Amendment) Act 2003 commences on a date between those two dates, the offence is alleged to have been committed before the commencement of that section. S. 172 inserted by No. 63/2003 s. 42. 172 Interpretation of Legislation Act 1984 s. 172 The provisions of sections 158 to 171 are in addition to, and not in derogation from, the provisions of the Interpretation of Legislation Act 1984. S. 173 inserted by No. 104/2003 s. 6. 173 Transitional—Crimes (Money Laundering) Act 2003 (1) The definition of tainted property in section 3 of this Act as amended by section 5(3) of the Crimes (Money Laundering) Act 2003, in so far as it relates to an offence under section 194, 195 or 195A of the Crimes Act 1958, applies only with respect to offences alleged to have been committed on or after the commencement of section 5(3) of the Crimes (Money Laundering) Act 2003. (2) The amendment of section 31M of this Act made by section 5(5) of the Crimes (Money
(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. s. 187 __________________ SCHEDULES SCHEDULE 1 Sch. 1 (Heading) substituted by No. 87/2004 s. 22(2)(x). Sch. 1 1. An indictable offence against the law of . Sch. 1 item 2 substituted by No. 87/2004 s. 22(2)(y). 2. A Schedule 2 offence. Sch. 1 item 3 substituted by No. 16/2006 s. 198(Sch. 2 item 2). 3. An offence against section 34(1)(c) of the Aboriginal Heritage Act 2006 (buying or selling an Aboriginal object).
Sch. 1 item 13B inserted by No. 75/2011 27(b). 13B. An offence against any of the following provisions of the Prevention of Cruelty to Animals Act 1986, where the offence relates to the conduct of a breeding domestic animal business within the meaning of the Domestic Animals Act 1994— (a) section 9 (cruelty); (b) section 10 (aggravated cruelty). 14. An offence against any of the following provisions of the Racing Act 1958: (a) section 29 (1A), (1B) or (1C) (receipt of direct financial benefit from profits of race-meeting); (b) section 55(2) (non-mechanical speed coursing). 15. An offence against any of the following provisions of the Wildlife Act 1975: 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 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;