Confiscation Amendment (Unexplained Wealth) Act 2024 (Vic)
Confiscation Amendment (Unexplained Wealth) Act 2024
No. 26 of 2024
TABLE OF PROVISIONS
Section Page
1Purpose
2Commencement
3Purposes
4Definitions
5Objects
6Restraining orders
7Application for freezing order
8Notice of freezing order
9Offence to disclose existence of freezing order
10Civil forfeiture restraining orders
11New Division 1AA of Part 4A inserted
12Unexplained wealth restraining orders
13Purpose for which an unexplained wealth restraining order may be made
14Property may be subject to both unexplained wealth restraining order and other orders
15New section 40EA inserted
16Application for unexplained wealth restraining order
17New sections 40GA and 40GB inserted
18Determination of application for unexplained wealth restraining order
19New section 40IA inserted
20Application for exclusion from unexplained wealth restraining order
21Determination of application for exclusion from unexplained wealth restraining order
22Further orders
23New section 40XA inserted
24New Division 1A of Part 4A inserted
25Forfeiture of unexplained wealth
26New section 40ZAB inserted
27Declaration that property has been forfeited
28Application for exclusion from unexplained wealth forfeiture
29Determination of application for exclusion from unexplained wealth forfeiture
30Effect of forfeiture
31Disposal of forfeited property
32Relief from automatic forfeiture of property of serious drug offender
33Relief from unexplained wealth forfeiture
34New section 45BA inserted
35Person with interest in forfeited property may buy back interest
36Buying out other interests in forfeited property
37Warrant may be granted by telephone
38Application for production order—unexplained wealth
39Production orders
40Powers under production orders
41Application for monitoring order
42Costs
43Payment of money realised into Consolidated Fund
44Duty not payable
45Regulations
45ANew section 148 inserted
46Schedule 1—Offences—Forfeiture on court order
47Schedule 2—Offences—Automatic forfeiture and civil forfeiture
48Repeal of this Act
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Endnotes
1 General information
Confiscation Amendment (Unexplained Wealth) Act 2024
No. 26 of 2024
[Assented to 6 August 2024]
The Parliament of Victoria enacts:
1Purpose
The purpose of this Act is to amend the Confiscation Act 1997—
(a)to provide for the imposition of a debt to the State on, and for the forfeiture of property of, a person who is unable to satisfy a court that their wealth was lawfully acquired; and
(b)to expand the unexplained wealth regime by creating an unexplained wealth order; and
(c)to make other miscellaneous amendments to that Act.
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 20 March 2025, it comes into operation on that day.
3Purposes
After section 1(da) of the Confiscation Act 1997 insert—
"(db)to provide for the imposition of a debt to the State on, and for the forfeiture of property of, a person who is unable to satisfy a court that their wealth was lawfully acquired;".
4Definitions
(1)In section 3(1) of the Confiscation Act 1997—
(a)in the definition of Secretary, for "Regulation" substitute "Community Safety";
(b)in the definition of unexplained wealth forfeiture, after "section 40ZA" insert "or 40ZAB";
(c)insert the following definition—
"unexplained wealth order means an order made under section 40ZAAB(3)(a) or (b);";
(d)in the definition of unexplained wealth restraining order, after "section 40I" insert "or 40IA".
(2)In section 3(2) of the Confiscation Act 1997, for "Regulation" substitute "Community Safety".
5Objects
(1)In section 3A(d) of the Confiscation Act 1997 for "activity." substitute "activity; and".
(2)After section 3A(d) of the Confiscation Act 1997 insert—
"(e)to disrupt criminal activity by preventing the use of wealth that is not lawfully acquired in further criminal activity; and
(f)to prevent the use and enjoyment of wealth that is not lawfully acquired.".
6Restraining orders
(1)In section 14(3) of the Confiscation Act 1997—
(a)in paragraph (b), for "Regulation." substitute "Community Safety;";
(b)after paragraph (b) insert—
"(c)any other person specified by the court in the order.".
(2)After section 14(3) of the Confiscation Act 1997 insert—
"(3A)A court, when making a restraining order, has power to give any other directions that are necessary to give effect to the restraining order.".
(3)In section 14(5) of the Confiscation Act 1997, for "A court" substitute "Subject to subsection (5A), a court".
(4)After section 14(5) of the Confiscation Act 1997 insert—
"(5A)A court may provide for the payment of legal expenses incurred by a mortgagee of property specified in the restraining order in a civil proceeding relating to the exercise of the mortgagee's power of sale over the restrained property, provided those expenses—
(a)do not include any expenses associated with an order made or a proceeding commenced under this Act; and
(b)are paid from the proceeds of sale of the restrained property.".
7Application for freezing order
For section 31D(1B) of the Confiscation Act 1997 substitute—
"(1B)An investigative officer may apply to the Magistrates' Court for a freezing order in respect of an account if—
(a)the applicant suspects on reasonable grounds that the person in whose name the account is held or a person who has an interest in the account—
(i)has engaged in serious criminal activity; or
(ii)has an interest in property that was not lawfully acquired; or
(iii)has wealth that exceeds the person's lawfully acquired wealth; and
(b)an application for an unexplained wealth restraining order is likely to be made in respect of money held in, or a digital asset associated with, that account.".
8Notice of freezing order
(1)In section 31G(1) of the Confiscation Act 1997, for "or investigative" (where twice occurring) substitute "or an investigative".
(2)In section 31G(2) of the Confiscation Act 1997, for "or investigative" (where twice occurring) substitute "or an investigative".
9Offence to disclose existence of freezing order
(1)In section 31L(1)(a) of the Confiscation Act 1997, for "or investigative" substitute "or an investigative".
(2)In section 31L(2)(a)(i) of the Confiscation Act 1997, for "or investigative" (where first occurring) substitute "or an investigative".
(3)In section 31L(5) of the Confiscation Act 1997, for "or investigative" substitute "or an investigative".
10Civil forfeiture restraining orders
(1)In section 36H(3) of the Confiscation Act 1997—
(a)in paragraph (b), for "Regulation." substitute "Community Safety;";
(b)after paragraph (b) insert—
"(c)any other person specified by the Supreme Court or the County Court (as the case requires) in the order.".
(2)After section 36H(3) of the Confiscation Act 1997 insert—
"(3A)The Supreme Court or the County Court, when making a civil forfeiture restraining order, has power to give any other directions that are necessary to give effect to the civil forfeiture restraining order.".
(3)In section 36H(5) of the Confiscation Act 1997, for "The Supreme" substitute "Subject to subsection (5A), the Supreme".
(4)After section 36H(5) of the Confiscation Act 1997 insert—
"(5A)The Supreme Court or the County Court may provide for the payment of legal expenses incurred by a mortgagee of property specified in the civil forfeiture restraining order in a civil proceeding relating to the exercise of the mortgagee's power of sale over the restrained property, provided those expenses—
(a)do not include any expenses associated with an order made or a proceeding commenced under this Act; and
(b)are paid from the proceeds of sale of the restrained property.".
11New Division 1AA of Part 4A inserted
After the heading to Part 4A of the Confiscation Act 1997 insert—
"Division 1AA—Definitions
40BADefinitions
In this Part—
lawfully acquired—
(a)in relation to property, has the meaning given by section 40G; and
(b)in relation to wealth, means any of the following—
(i)lawfully acquired property;
(ii)lawfully derived benefits;
(iii)lawfully obtained services and advantages;
lawfully derived, in relation to a benefit, has the meaning given by section 40GA;
lawfully obtained, in relation to a service or an advantage, has the meaning given by section 40GB;
wealth, of a person, means the value of—
(a)the property in which the person has an interest or that is otherwise subject to the effective control of the person; and
(b)the benefits the person derives; and
(c)the benefits another person derives at the direction or request of the person; and
(d)the services and advantages the person obtains; and
(e)the services and advantages another person obtains at the direction or request of the person.".
12Unexplained wealth restraining orders
(1)In section 40C(3) of the Confiscation Act 1997—
(a)in paragraph (b), for "Regulation." substitute "Community Safety;";
(b)after paragraph (b) insert—
"(c)any other person specified by the court in the order.".
(2)After section 40C(3) of the Confiscation Act 1997 insert—
"(3A)A court, when making an unexplained wealth restraining order, has power to give any other directions that are necessary to give effect to the unexplained wealth restraining order.".
(3)In section 40C(5) of the Confiscation Act 1997, for "The court" substitute "Subject to subsection (5A), the court".
(4)After section 40C(5) of the Confiscation Act 1997 insert—
"(5A)The court may provide for the payment of legal expenses incurred by a mortgagee of property specified in the unexplained wealth restraining order in a civil proceeding relating to the exercise of the mortgagee's power of sale over the restrained property, provided those expenses—
(a)do not include any expenses associated with an order made or a proceeding commenced under this Act; and
(b)are paid from the proceeds of sale of the restrained property.".
13Purpose for which an unexplained wealth restraining order may be made
In section 40D(2) of the Confiscation Act 1997, after "unexplained wealth forfeiture" insert "or forfeiture of property to satisfy an unexplained wealth order.".
14Property may be subject to both unexplained wealth restraining order and other orders
In section 40E(2) of the Confiscation Act 1997 for "section 44(2)" (wherever occurring) substitute "section 44".
15New section 40EA inserted
After section 40E of the Confiscation Act 1997 insert—
"40EA Property may be subject to more than one unexplained wealth restraining order
(1)Property or an interest in property may be subject to either or both of the following—
(a)an unexplained wealth restraining order under section 40I;
(b)an unexplained wealth restraining order under section 40IA.
(2)If an unexplained wealth restraining order under section 40I and an unexplained wealth restraining order under section 40IA apply to the same property or interest in property, the unexplained wealth restraining order made under section 40I, to the extent that it applies to that property or interest in property, remains in operation until the earliest of the following—
(a)the property being able to be disposed of in accordance with section 44 because forfeiture of the property has occurred under section 40ZA or 40ZAB;
(b)the unexplained wealth restraining order made under section 40I being set aside in whole or in relation to the property or interest in property under section 40X;
(c)the property or interest in property being excluded from the operation of the unexplained wealth restraining order made under section 40I by an unexplained wealth forfeiture exclusion order.
(3)If an unexplained wealth restraining order under section 40I and an unexplained wealth restraining order under section 40IA apply to the same property or interest in property, the unexplained wealth restraining order made under section 40IA, to the extent that it applies to that property or interest in property, remains in operation until the earliest of the following—
(a)the property being able to be disposed of in accordance with section 44 because forfeiture of the property has occurred under section 40ZA or 40ZAB;
(b)the unexplained wealth restraining order made under section 40IA being set aside in whole or in relation to the property or interest in property under section 40X or 40ZAAG;
(c)the unexplained wealth restraining order made under section 40IA ceasing to have effect under section 40XA;
(d)the property or interest in property being excluded from the operation of the unexplained wealth restraining order made under section 40IA by an unexplained wealth forfeiture exclusion order.".
16Application for unexplained wealth restraining order
(1)After section 40F(2) of the Confiscation Act 1997 insert—
"(2A)The DPP or an appropriate officer may apply without notice to a court for an unexplained wealth restraining order in respect of property if a police officer suspects on reasonable grounds that, having regard to the matters set out in section 40ZAAC—
(a)a person has wealth that exceeds their lawfully acquired wealth; and
(b)the total value of the wealth that is not lawfully acquired is $200 000 or more; and
(c)the person has an interest in the property sought to be restrained.".
(2)In section 40F(3) of the Confiscation Act 1997—
(a)for "subsection (1) or (2)" substitute "subsection (1), (2) or (2A)";
(b)after paragraph (c) insert—
"(ca)in the case of an application under subsection (2A), stating that the police officer suspects that, having regard to the matters set out in section 40ZAAC—
(i)a person has wealth that exceeds their lawfully acquired wealth; and
(ii)the total value of the wealth that is not lawfully acquired is $200 000 or more; and
(iii)the person has an interest in the property sought to be restrained; and".
(c)in paragraph (d), for "paragraph (b) or (c)" substitute "paragraph (b), (c) or (ca)".
(3)After section 40F(6)(a) of the Confiscation Act 1997 insert—
"(ab)any property that was, on the day when the first application for a restraining order in respect of property of the person was made under this Act, subject to the effective control of the person; and".
(4)In the example at the foot of section 40F(8) of the Confiscation Act 1997, for "subsections (1) and (2)" substitute "subsections (1), (2) and (2A)".
17New sections 40GA and 40GB inserted
After section 40G of the Confiscation Act 1997 insert—
"40GA Benefits lawfully derived
(1)For the purposes of this Part—
(a)a benefit derived by a person for sufficient consideration that has been lawfully acquired is taken to have been lawfully derived only if the consideration given for the benefit by the person was lawfully acquired;
(b)a benefit derived by a person other than for sufficient consideration is taken to have been lawfully derived only if the person from whom it was derived lawfully derived the benefit;
(c)a benefit derived by a person as a prize or as the proceeds of any form of gambling is taken to have been lawfully derived only if any money or other item of value used by the person for the purposes of entering the prize draw or for the purposes of the gambling (as the case may be) was lawfully acquired;
(d)a benefit derived by a person from salary or wages or from payment under a contract for services is taken to have been lawfully derived only if the salary or wages or the payment for the services (as the case may be)—
(i)did not exceed the reasonable market rate applying at the time for the labour or services provided; or
(ii)were lawfully acquired by the person from whom they were received;
(e)a benefit derived by a person, whether or not it is derived for sufficient consideration, is not a benefit lawfully derived if the person derived the benefit knowing, or in circumstances such as to arouse a reasonable suspicion, that the benefit was derived, or substantially derived, directly or indirectly, from any unlawful activity.
(2)Subsection (1) does not limit the criteria for determining for the purposes of this Part whether or not a benefit has been lawfully derived.
40GBServices and advantages lawfully obtained
(1)For the purposes of this Part—
(a)a service or an advantage obtained by a person for sufficient consideration that has been lawfully acquired is taken to have been lawfully obtained only if the consideration given for the service or advantage by the person was lawfully acquired;
(b)a service or an advantage obtained by a person other than for sufficient consideration is taken to have been lawfully obtained only if the person from whom it was obtained lawfully obtained the service or advantage;
(c)a service or an advantage obtained by a person as a prize or as the proceeds of any form of gambling is taken to have been lawfully obtained only if any money or other item of value used by the person for the purposes of entering the prize draw or for the purposes of the gambling (as the case may be) was lawfully acquired;
(d)a service or an advantage obtained by a person from salary or wages or from payment under a contract for services is taken to have been lawfully obtained only if the salary or wages or the payment for the services (as the case may be)—
(i)did not exceed the reasonable market rate applying at the time for the labour or services provided; or
(ii)were lawfully acquired by the person from whom they were received;
(e)a service or an advantage obtained by a person, whether or not it is obtained for sufficient consideration, is not a service or an advantage lawfully obtained if the person obtained the service or advantage knowing, or in circumstances such as to arouse a reasonable suspicion, that the service or advantage was obtained, or substantially obtained, directly or indirectly, from any unlawful activity.
(2)Subsection (1) does not limit the criteria for determining for the purposes of this Part whether or not a service or an advantage has been lawfully obtained.".
18Determination of application for unexplained wealth restraining order
(1)In the heading to section 40I of the Confiscation Act 1997, after "application" insert "under section 40F(1) or (2)".
(2)At the foot of section 40I of the Confiscation Act 1997 insert the following note—
"Note
The court may order that an application for an unexplained wealth restraining order be heard in closed court. See Part 5 of the Open Courts Act 2013.".
19New section 40IA inserted
After section 40I of the Confiscation Act 1997 insert—
"40IA Determination of application under section 40F(2A) for unexplained wealth restraining order
(1)On an application under section 40F(2A) for an unexplained wealth restraining order, the court must make an unexplained wealth restraining order if it is satisfied that, having regard to the matters set out in section 40ZAAC—
(a)the deponent of the affidavit supporting the application does suspect that—
(i)a person has wealth that exceeds their lawfully acquired wealth; and
(ii)the total value of the wealth that is not lawfully acquired is $200 000 or more; and
(iii)the person has an interest in the property sought to be restrained; and
(b)there are reasonable grounds for the suspicion referred to in paragraph (a).
(2)For the purposes of subsection (1), it does not matter whether the police officer has a reasonable suspicion that the person referred to in paragraph (a)(i) has engaged in serious criminal activity.
Note
The court may order that an application for an unexplained wealth restraining order be heard in closed court. See Part 5 of the Open Courts Act 2013.".
20Application for exclusion from unexplained wealth restraining order
(1)In section 40R(1) of the Confiscation Act 1997 for "If a court" substitute "Subject to subsection (1A), if a court".
(2)After section 40R(1) of the Confiscation Act 1997 insert—
"(1A)A person cannot make an application under subsection (1) if—
(a)the unexplained wealth restraining order was made under section 40IA; and
(b)the person was named in the application for the unexplained wealth restraining order as the person suspected of having wealth that is not lawfully acquired.".
21Determination of application for exclusion from unexplained wealth restraining order
For section 40S(1) of the Confiscation Act 1997 substitute—
"(1)On an application under section 40R(1), the court may make an order excluding the applicant's interest in property from the operation of the unexplained wealth restraining order if the court is satisfied that—
(a)the property was lawfully acquired by the applicant; or
(b)in the case of an application relating to an unexplained wealth restraining order made under section 40IA, it would be manifestly unjust to restrain the property.".
22Further orders
(1)For section 40W(6)(h) of the Confiscation Act 1997 substitute—
"(h)an order directing any of the following to take control of property to which the unexplained wealth restraining order relates—
(i)a trustee specified in the order;
(ii)a person holding a prescribed position within the Department of Justice and Community Safety;
(iii)any other person specified by the court in the order;".
(2)In section 40W(6)(i) of the Confiscation Act 1997—
(a)for "trustee" (where first occurring) substitute "trustee, a person holding a prescribed position within the Department of Justice and Community Safety or any other person";
(b)in subparagraph (i), for "trustee" substitute "trustee, person holding a prescribed position within the Department of Justice and Community Safety or other person".
23New section 40XA inserted
After section 40X of the Confiscation Act 1997 insert—
"40XA Unexplained wealth restraining order under section 40IA ceases to be in force
An unexplained wealth restraining order made under section 40IA ceases to be in force at the end of the period of 90 days after the making of the unexplained wealth restraining order if an application for an unexplained wealth order has not been made against the person named in the unexplained wealth restraining order.".
24New Division 1A of Part 4A inserted
After Division 1 of Part 4A of the Confiscation Act 1997 insert—
"Division 1A—Unexplained wealth order
40ZAAApplication for unexplained wealth order
(1)The DPP or an appropriate officer may apply to a court for an unexplained wealth order if a police officer suspects on reasonable grounds that—
(a)a person has wealth that exceeds their lawfully acquired wealth; and
(b)the total value of the wealth that is not lawfully acquired is $200 000 or more.
(2)An application under subsection (1) must be supported by an affidavit of a police officer—
(a)setting out any relevant matters; and
(b)stating that the police officer suspects that—
(i)a person has wealth that exceeds their lawfully acquired wealth; and
(ii)the total value of the wealth that is not lawfully acquired is $200 000 or more; and
(c)setting out the grounds on which the police officer has that suspicion.
(3)On an application under subsection (1), the DPP or an appropriate officer must give notice of the application to the respondent to the application.
(4)The respondent is entitled to appear and to give evidence at the hearing of the application but the absence of the respondent does not prevent the court from making an unexplained wealth order.
40ZAABDetermination of application for unexplained wealth order
(1)This section applies if—
(a)an application is made under section 40ZAA(1) for an unexplained wealth order to be made against a person; and
(b)not less than 30 days have elapsed since notice of the application for the unexplained wealth order was given to the person under section 40ZAA(3); and
(c)if the person was named in an application for an unexplained wealth restraining order made under section 40IA, there are no pending applications for a section 40S exclusion order relating to that unexplained wealth restraining order.
(2)If this section applies, the court must assess—
(a)whether the respondent to the application for the unexplained wealth order has wealth that exceeds their lawfully acquired wealth; and
(b)whether the total value of any wealth that is not lawfully acquired is $200 000 or more.
(3)If the court is satisfied that the respondent has wealth of $200 000 or more that is not lawfully acquired, the court may—
(a)order the respondent to pay the State an amount equal to the value of the wealth that is not lawfully acquired; or
(b)order the respondent to pay a lesser amount, if the court determines that it would be manifestly unjust to order the respondent to pay the amount referred to in paragraph (a); or
(c)refuse to make an unexplained wealth order, if the court determines that making the order would be manifestly unjust.
(4)In determining whether to make an order under subsection (3)(a) or (b) or to refuse to make an unexplained wealth order, the court must not have regard to any of the following—
(a)wealth for which the applicant has not provided evidence;
(b)whether the respondent's unexplained wealth was obtained through, or associated with, the commission of an offence for which the respondent has not been convicted or found guilty;
(c)whether the respondent has engaged in serious criminal activity;
(d)the effect of the unexplained wealth order on the standard of living of the respondent or a dependant of the respondent.
(5)The court may order the respondent to appear before the court to assist the court in determining whether to make an unexplained wealth order against the respondent.
(6)A respondent's wealth is presumed to have not been lawfully acquired unless the respondent satisfies the court to the contrary.
Note
The court may order that an application for an unexplained wealth order be heard in closed court. See Part 5 of the Open Courts Act 2013.
40ZAACAssessment of unexplained wealth
(1)For the purposes of this Part, in assessing whether a person's wealth over a particular period has exceeded the wealth the person lawfully acquired over that period, regard must be had to the following—
(a)the value of property in which the person has an interest at the time of the assessment, being the greater of—
(i)the acquisition value of the property; or
(ii)the current value of the property;
(b)the value of property consumed or disposed of by the person or at the direction of the person during the period, being the greater of—
(i)the acquisition value of the property; or
(ii)the value of the property when it was consumed or disposed of;
(c)any payments made by the person or at the direction of the person during the period to service or extinguish a loan or debt or any other obligation of the person or of another person;
(d)any other expenses paid for by or at the direction of the person during the period;
(e)the value of any benefits the person derived during the period;
(f)the value of any benefits another person derived during the period at the direction of the person;
(g)the value of any services and advantages the person obtained during the period;
(h)the value of any services and advantages another person obtained during the period at the direction of the person.
(2)An assessment of a person's wealth in accordance with this section must not include—
(a)the value of any property confiscated under this Act or another enactment or an enactment of another jurisdiction; or
(b)the value of any property, benefit, service or advantage that has been the subject of an unexplained wealth order or pecuniary penalty order made against the person.
(3)In this section, property in which a person has an interest includes property under the effective control of the person.
(4)For the purposes of an assessment of a person's wealth under this section—
(a)property acquired more than 10 years prior to the application date is taken to have been lawfully acquired; and
(b)a benefit derived more than 10 years prior to the application date is taken to have been lawfully derived; and
(c)a service or advantage obtained more than 10 years prior to the application date is taken to have been lawfully obtained.
(5)In this section—
application date, for a person whose wealth is being assessed, means the date on which an application is made for an unexplained wealth order to be made against the person.
40ZAADEvidentiary requirements for respondent to unexplained wealth order
(1)At a hearing of an application for an unexplained wealth order, the respondent to the application may claim that wealth that is the subject of the application was lawfully acquired by the respondent.
(2)Subject to subsection (3), the respondent must provide documentary evidence of any transactions alleged by the respondent to have occurred that would support the claim that the respondent's wealth was lawfully acquired.
(3)The court hearing the application may accept evidence other than documentary evidence of those transactions if—
(a)that other evidence is provided in addition to documentary evidence of those transactions; 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.
Note
A respondent's wealth is taken to have been lawfully acquired if the wealth was acquired more than 10 years prior to the date on which an application is made for an unexplained wealth order to be made against the respondent—see section 40ZAAC(4).
40ZAAEPrivilege against self-incrimination
If a respondent to an unexplained wealth order is charged with an offence, the following evidence is admissible against that person in a proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person—
(a)any statement made or evidence given by the respondent in response to the application for an unexplained wealth order;
(b)any information, document or thing obtained as a direct or indirect consequence of any statement or evidence referred to in paragraph (a).
40ZAAFUnexplained wealth order debt due to Crown
(1)An amount payable by a person to the State under an unexplained wealth order is, for all purposes, to be taken to be a civil debt due by the person to the Crown.
(2)An unexplained wealth order made by a court must be taken to be a judgment debt and may be enforced as if it were an order made by it in civil proceedings instituted by the Crown against the respondent to recover a debt due by the respondent to the Crown.
40ZAAGPayment of amount payable under unexplained wealth order
(1)A person subject to an unexplained wealth order must pay the amount payable to the State under the order—
(a)within 90 days of the date on which the order was made; or
(b)as otherwise ordered by the court.
(2)On the person paying an amount payable under the unexplained wealth order, the court may—
(a)make an order setting aside the unexplained wealth restraining order made under section 40IA in respect of the person; or
(b)make such other order or orders as it considers appropriate in relation to the operation of the unexplained wealth restraining order made under section 40IA.
40ZAAHConsent order relating to forfeiture of property
(1)The court that made an unexplained wealth order may make an order under subsection (2) by consent of—
(a)the applicant for the unexplained wealth order; and
(b)the respondent to the unexplained wealth order.
(2)The order may reflect an agreement between the persons referred to in subsection (1) that property in which a person has an interest and that is the subject of an unexplained wealth restraining order made under section 40IA is forfeited to the Minister to satisfy an amount payable by that person under an unexplained wealth order.".
25Forfeiture of unexplained wealth
(1)In the heading to section 40ZA of the Confiscation Act 1997, for "wealth" substitute "wealth—serious criminal activity or property not lawfully acquired".
(2)In section 40ZA(1) of the Confiscation Act 1997, after "order" (where first occurring) insert "made under section 40I".
26New section 40ZAB inserted
After section 40ZA of the Confiscation Act 1997 insert—
"40ZAB Property may be forfeited to satisfy unexplained wealth order
(1)Subject to subsection (2), property in which a person has an interest and that is the subject of an unexplained wealth restraining order made under section 40IA is forfeited to the Minister if—
(a)an unexplained wealth order is made against the person; and
(b)either—
(i)the court has made a consent order under section 40ZAAH under which the person consents to the forfeiture of the property to satisfy an amount payable under the unexplained wealth order; or
(ii)the person has not paid the amount payable under the unexplained wealth order by the date that payment is due.
(2)Property subject to an unexplained wealth restraining order is forfeited under subsection (1) only to the extent that the property or a specified part of that property is required to satisfy the amount payable under the unexplained wealth order.".
27Declaration that property has been forfeited
In section 40ZB(1) and (3) of the Confiscation Act 1997, after "section 40ZA" insert "or 40ZAB".
28Application for exclusion from unexplained wealth forfeiture
After section 40ZC(1) of the Confiscation Act 1997 insert—
"(1A)Subject to subsections (1B) and (2), if property is forfeited to the Minister under section 40ZAB, 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 unexplained wealth restraining order for a section 40ZD exclusion order excluding the interest in the property from unexplained wealth forfeiture.
(1B)A person cannot make an application under subsection (1A) if the person was named in the application for the relevant unexplained wealth restraining order as the person suspected of having wealth that is not lawfully acquired.".
29Determination of application for exclusion from unexplained wealth forfeiture
(1)For section 40ZD(1) of the Confiscation Act 1997 substitute—
"(1)On an application under section 40ZC, the court may make an order excluding the applicant's interest in property from the operation of the unexplained wealth forfeiture if the court is satisfied that—
(a)the property was lawfully acquired by the applicant; or
(b)in the case of an application relating to an unexplained wealth order, it would be manifestly unjust to forfeit the property.".
30Effect of forfeiture
In section 41(2)(ba), (3) and (4) of the Confiscation Act 1997, after "section 40ZA" insert "or 40ZAB".
31Disposal of forfeited property
In section 44(1) of the Confiscation Act 1997, after "section 40ZA" insert "or 40ZAB".
32Relief from automatic forfeiture of property of serious drug offender
(1)In section 45A(4) of the Confiscation Act 1997—
(a)for "dependent" substitute "dependant";
(b)in paragraph (b), for "proceeds." substitute "proceeds; or";
(c)after paragraph (b) insert—
"(c)an amount that reflects an agreement between the DPP and the dependant; or
(d)any other amount the court considers appropriate in the circumstances.".
(2)After section 45A(4) of the Confiscation Act 1997 insert—
"(4A)An amount under subsection (4)(c) must not be more than the prescribed amount or the amount of the proceeds of sale.".
(3)In section 45A(5A) of the Confiscation Act 1997, for "dependents" substitute "dependants".
(4)For section 45A(6) of the Confiscation Act 1997 substitute—
"(6)An applicant for an order under subsection (1) must give written notice of the application to—
(a)the Minister; and
(b)any person prescribed for the purposes of section 44(1); and
(c)the applicant for the serious drug offence restraining order under which the property is forfeited.".
(5)In section 45A(7) of the Confiscation Act 1997, in paragraph (b) of the definition of dependant, for "offender for" substitute "offender, and has been for a substantial period of time immediately prior to the making of the serious drug offence restraining order, for".
33Relief from unexplained wealth forfeiture
(1)In section 45B(1) of the Confiscation Act 1997, after "section 40ZA" insert "or 40ZAB".
(2)After section 45B(4)(a) of the Confiscation Act 1997 insert—
"(ab)in the case of forfeiture of the property to satisfy a debt under an unexplained wealth order, the person has not obtained an order under section 45BA for relief from payment of that debt; and".
34New section 45BA inserted
After section 45B of the Confiscation Act 1997 insert—
"45BA Relief from debt imposed under unexplained wealth order
(1)If a debt is imposed on a person under an unexplained wealth order, the person may apply to the court that made the unexplained wealth order for relief from payment of the debt.
(2)An application under subsection (1) must be made within 60 days after the unexplained wealth order is made.
(3)Subject to subsection (4), the court may reduce the amount payable under the unexplained wealth order by a specified amount, being an amount that the court is satisfied is necessary to prevent undue hardship to the person caused by the debt imposed under the unexplained wealth order.
(4)The court may make an order under subsection (3) if satisfied that—
(a)the person has not obtained an order under section 45B for relief from the forfeiture of property under the unexplained wealth order; and
(b)undue hardship may reasonably be likely to be caused to the applicant by the unexplained wealth order.
(5)An applicant for an order under subsection (1) must give written notice of the application to the applicant for the unexplained wealth order under which the debt was imposed.
(6)On the making of an application for an order under subsection (1), the unexplained wealth order is stayed until a determination of the application is made and, once the determination is made, the court must order the date on which the amount payable under the unexplained wealth order is due.".
35Person with interest in forfeited property may buy back interest
After section 56(1) of the Confiscation Act 1997 insert—
"(1A)An application under this section must be made within 60 days after the property is forfeited to the Minister or at such later date specified by the Minister, having regard to the circumstances of the case.".
36Buying out other interests in forfeited property
After section 57(1) of the Confiscation Act 1997 insert—
"(1A)An application under this section must be made within 60 days after the property is forfeited to the Minister or at such later date specified by the Minister, having regard to the circumstances of the case.".
37Warrant may be granted by telephone
In section 81(4) of the Confiscation Act 1997, for "he or she may issue a search warrant" substitute "the magistrate or judge may issue a search warrant or a seizure warrant".
38Application for production order—unexplained wealth
(1)In section 100A(1) of the Confiscation Act 1997—
(a)in paragraph (b), for "acquired." substitute "acquired; or";
(b)after paragraph (b) insert—
"(c)the person's wealth is suspected to exceed the person's lawfully acquired wealth.".
(2)For section 100A(2)(a) and (b) of the Confiscation Act 1997 substitute—
"(a)stating that the person is suspected of—
(i)having engaged in serious criminal activity; or
(ii)having acquired property unlawfully; or
(iii)having wealth that exceeds the person's lawfully acquired wealth; and
(b)stating that the police officer suspects that the person against whom the order is sought has possession or control of a property‑tracking document or property‑tracking documents in relation to—
(i)the serious criminal activity; or
(ii)the unlawful acquisition of wealth; or
(iii)the person's wealth exceeding the person's lawfully acquired wealth; and".
39Production orders
In section 101(2)(a) and (b) of the Confiscation Act 1997, for "a investigative" substitute "an investigative".
40Powers under production orders
(1)In section 102(1) of the Confiscation Act 1997, for "a investigative" substitute "an investigative".
(2)In section 102(2) of the Confiscation Act 1997, for "a investigative" substitute "an investigative".
(3)In section 102(3) of the Confiscation Act 1997, for "a investigative" substitute "an investigative".
41Application for monitoring order
In section 115(2)(a) of the Confiscation Act 1997—
(a)in subparagraph (iv), for "activity; and" substitute "activity; or";
(b)after subparagraph (iv) insert—
"(v)has acquired property unlawfully; or
(vi)has wealth that exceeds the person's lawfully acquired wealth; and".
42Costs
(1)After section 133A(3A) of the Confiscation Act 1997 insert—
"(3B)If—
(a)a person brings, or appears at, proceedings under this Act before a court in order to prevent an unexplained wealth order from being made against the person; and
(b)the person is successful in those proceedings—
the court may order the applicant for the unexplained wealth order to pay all the costs incurred by the person in connection with the proceedings or any part of those costs that is determined by the court.".
(2)In section 133A(4) of the Confiscation Act 1997, for "(3) and (3A)" substitute "(3), (3A) and (3B)".
43Payment of money realised into Consolidated Fund
In section 134A(1) of the Confiscation Act 1997—
(a)for "order or a pecuniary penalty order" substitute "order, a pecuniary penalty order or an unexplained wealth order";
(b)after "section 40ZA" insert "or 40ZAB".
44Duty not payable
(1)Insert the following heading to section 136 of the Confiscation Act 1997—
"Duty not payable".
(2)In section 136 of the Confiscation Act 1997—
(a)for "stamp duty" substitute "duty";
(b)for "Stamps Act 1958" substitute "Duties Act 2000".
45Regulations
For section 146(2) of the Confiscation Act 1997 substitute—
"(2)The regulations may—
(a)be of general or limited application;
(b)differ according to differences in time, place or circumstances;
(c)confer a discretionary authority or impose a duty on a specified person or a specified class of person;
(d)leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by a specified person;
(e)provide, in a specified case or class of case, for the exemption of persons or things or a class of persons or things from any of the provisions of the regulations—
(i)whether unconditionally or on specified conditions; and
(ii)either wholly or to any extent that is specified;
(f)apply, adopt or incorporate any matter contained in any document whether—
(i)wholly or partially or as amended by the regulations; or
(ii)as in force at a particular time; or
(iii)as in force from time to time.".
45ANew section 148 inserted
After section 147 of the Confiscation Act 1997 insert—
"148 Review of introduction of new unexplained wealth pathway by Confiscation Amendment (Unexplained Wealth) Act 2024
(1)The Attorney-General must cause a review to be conducted of the operation of Division 1A of Part 4A of this Act and any provisions of this Act that support the operation of that Division.
(2)The review must be commenced no later than 3 years after the commencement of section 24 of the Confiscation Amendment (Unexplained Wealth) Act 2024.
(3)The review must be completed no later than 12 months after it commences.
(4)The Attorney-General must cause a copy of the review to be laid before each House of Parliament as soon as practicable after receiving it.".
46Schedule 1—Offences—Forfeiture on court order
(1)In item 7(ta) of Schedule 1 to the Confiscation Act 1997, for "species)." substitute "species);".
(2)In item 13A of Schedule 1 to the Confiscation Act 1997, for "National Parks Act 1975:" substitute "National Parks Act 1975—".
47Schedule 2—Offences—Automatic forfeiture and civil forfeiture
(1)In item 2 of Schedule 2 to the Confiscation Act 1997—
(a)for "Crimes Act 1958:" substitute "Crimes Act 1958—";
(b)in paragraph (bd), for "services)." substitute "(services);".
(2)In item 2A of Schedule 2 to the Confiscation Act 1997, for "Sex Work Decriminalisation Act 2022:" substitute "Sex Work Decriminalisation Act 2022—".
(3)In item 2B of Schedule 2 to the Confiscation Act 1997, for "Casino Control Act 1991:" substitute "Casino Control Act 1991—".
48Repeal of this Act
This Act is repealed on 20 March 2026.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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ENDNOTES
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 20 March 2024
Legislative Council: 14 May 2024
The long title for the Bill for this Act was "A Bill for an Act to amend the Confiscation Act 1997 in relation to unexplained wealth and for other purposes. "
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