Confiscation Miscellaneous Amendment Regulations 2023 (Vic)
Confiscation Miscellaneous Amendment Regulations 2023
S.R. No. 74/2023
table of provisions
Regulation Page
1Objective
2Authorising provision
3Commencement
4Principal Regulations
5Seizure warrant
6New regulation 24A inserted
7Information notice
8Law enforcement agency
9New regulation 37A inserted
10Disposal of forfeited property
11New regulation 55A inserted
12New regulation 57A inserted
13New regulation 59A inserted
14New regulation 66A inserted
15Form 2 in Schedule 1 substituted
16Form 3 in Schedule 1 substituted
17Form 4 in Schedule 1 substituted
18Form 9 in Schedule 1 amended
19Form 10 in Schedule 1 substituted
20New Form 10A in Schedule 1 inserted
21Form 11 in Schedule 1 amended
22Form 16 in Schedule 1 amended
23Form 18 in Schedule 1 amended
24New Form 19A in Schedule 1 inserted
25Form 21 in Schedule 1 amended
26New Form 21A in Schedule 1 inserted
27Form 22 in Schedule 1 amended
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Endnotes
statutory rules 2023
S.R. No. 74/2023
Confiscation Act 1997
Confiscation Miscellaneous Amendment Regulations 2023
The Lieutenant-Governor, having assumed the administration of the government of the State under section 6B of the Constitution Act 1975, with the advice of the Executive Council, makes the following Regulations:
Dated: 25 July 2023
Responsible Minister:
JACLYN SYMES
Attorney-General
ANGELA SMITH
Clerk of the Executive Council
1Objective
The objective of these Regulations is to amend the Confiscation Regulations 2019—
(a)to prescribe matters under the Confiscation Act 1997 following amendments made to that Act by the Major Crime and Community Safety Legislation Amendment Act 2022; and
(b)to make other miscellaneous amendments.
2Authorising provision
These Regulations are made under section 146 of the Confiscation Act 1997.
3Commencement
These Regulations come into operation on 1 August 2023.
4Principal Regulations
In these Regulations, the Confiscation Regulations 2019[1] are called the Principal Regulations.
5Seizure warrant
In regulation 15 of the Principal Regulations, for "Act, Form 10 in Schedule 1 is prescribed." substitute—
"Act—
(a)Form 10 in Schedule 1 is prescribed for applications in respect of tainted property which is at a public place; and
(b)Form 10A in Schedule 1 is prescribed for applications in respect of property forfeited under the Act which is at a public place.".
6New regulation 24A inserted
After regulation 24 of the Principal Regulations insert—
"24A Examination notice
For the purposes of section 98A of the Act, Form 19A in Schedule 1 is prescribed.".
7Information notice
In regulation 26 of the Principal Regulations, for "Act, Form 21 in Schedule 1 is prescribed." substitute—
"Act—
(a)Form 21 in Schedule 1 is prescribed for information notices issued under section 118D of the Act; and
(b)Form 21A in Schedule 1 is prescribed for information notices issued under section 118E of the Act.".
8Law enforcement agency
After the heading to regulation 33 of the Principal Regulations insert—
"(1)For the purposes of paragraph (ba) of the definition of law enforcement agency in section 3(1) of the Act, employees of the Department of Justice and Community Safety employed in Asset Confiscation Operations are prescribed.".
9New regulation 37A inserted
After regulation 37 of the Principal Regulations insert—
"37A Registration of restraining order
For the purposes of section 28(1) of the Act, the Assistant Director, Asset Confiscation Operations is prescribed.".
10Disposal of forfeited property
In regulation 49 of the Principal Regulations, for "Act, the Assistant Director, Asset Confiscation Operations is prescribed." substitute—
"Act, the following persons are prescribed—
(a)the Assistant Director, Asset Confiscation Operations;
(b)the Chief Commissioner of Police.".
11New regulation 55A inserted
After regulation 55 of the Principal Regulations insert—
"55A Registration of charges and declarations
For the purposes of section 72(5) and (7) of the Act, the Assistant Director, Asset Confiscation Operations in the Department of Justice and Community Safety is prescribed.".
12New regulation 57A inserted
After regulation 57 of the Principal Regulations insert—
"57A Notice of intention to sell charged land
For the purpose of section 73A(2)(a) of the Act, the following particulars are prescribed—
(a)in the case of a natural person who has an interest in the land, the name and address and, if known, the date of birth of the person;
(b)in the case of a body corporate who has an interest in the land, the name and registered address and, if known, the ABN, ACN or ARBN of the body corporate;
(c)a statement which includes the following—
(i)the address of the land to be sold;
(ii)details of land ownership and title details;
(iii)the nature of the interest of the person;
(d)the date on which the charge on land was registered under section 72(5) of the Act;
(e)details of the pecuniary penalty order, restraining order or declaration under section 70(1) of the Act as the case may be;
(f)the effect of section 73B of the Act.".
13New regulation 59A inserted
After regulation 59 of the Principal Regulations insert—
"59A Seizure warrants—public places
For the purposes of section 79A(1)(b) of the Act, the Assistant Director, Asset Confiscation Operations is prescribed.".
14New regulation 66A inserted
After regulation 66 of the Principal Regulations insert—
"66A Requesting information held by credit reporting bodies
For the purposes of paragraph (b) of the definition of investigative officer in section 118N(4) of the Act, the Assistant Director, Asset Confiscation Operations is prescribed.".
15Form 2 in Schedule 1 substituted
For Form 2 in Schedule 1 to the Principal Regulations substitute—
"FORM 2
Regulation 7
FREEZING ORDER
Section 31F(4) of the Confiscation Act 1997
Court Ref.
This freezing order under Part 2A of the Confiscation Act 1997 is made at [insert time] am/pm on [insert date] by [insert name of Magistrate].
Name of financial institution with which account is held
[insert financial institution]
Number or description of account to be frozen
[insert account details]
Conditions, if any, to which order is subject
[insert conditions to which order is subject, if any]
This freezing order is issued to—
*Name, Rank, No. of police officer [insert name, rank, number of police officer]/*name, title of investigative officer [insert name, title of investigative officer]
Address [insert address of police or other investigative officer]
being an investigative officer within the meaning of section 31A of the Confiscation Act 1997 as—
*a police officer/*a member of a class of police officer authorised under section 31B of the Confiscation Act 1997 for the purposes of applying for a freezing order.
OR
*a person who holds a prescribed office/*a person belonging to a prescribed class of investigative officer.
The application for the freezing order was made *in writing/*by telephone/*by facsimile.
An affidavit in support of the application for the freezing order was *provided/*not provided.
The freezing order was *transmitted/*not transmitted by facsimile machine.
*Delete if inapplicable.
A freezing order is a court order that a financial institution must not allow a person to transact in relation to a specified account held with that institution, except to make deposits or in the manner and circumstances specified in the freezing order.
If the application for a freezing order has been made before an affidavit is prepared or sworn, the applicant for the freezing order, not later than the day following the making of the application, must send a duly sworn affidavit to the venue of the Magistrates' Court that determined the application, irrespective of whether a freezing order has been made (section 31D(4) of the Confiscation Act 1997).
If the Magistrates' Court provides the applicant with a copy of the freezing order in writing or by facsimile at the time the order is made, an investigative officer, not more than 5 business days after a freezing order is made, must give to the financial institution specified above a copy of the freezing order and a notice in the prescribed form specifying the matters set out in section 31G(1)(b) of the Confiscation Act 1997.
If the Magistrates' Court does not provide the applicant with a copy of the freezing order in writing or by facsimile at the time the order is made, an investigative officer, not more than 5 business days after the freezing order is made, must give to the financial institution specified above a notice in the prescribed form specifying the matters set out in section 31G(2) of the Confiscation Act 1997.".
16Form 3 in Schedule 1 substituted
For Form 3 in Schedule 1 to the Principal Regulations substitute—
"FORM 3
Regulation 8
NOTICE TO ACCOMPANY COPY OF FREEZING ORDER
Section 31G(1)(b) of the Confiscation Act 1997
To [insert name of financial institution]
of [insert address of financial institution]
A copy of a freezing order should be given to you with this notice.
You must not allow a person to transact in relation to the account specified in the freezing order, except to make deposits or in the manner and circumstances specified in the freezing order.
The freezing order takes effect at the time that this notice is given to you. The freezing order lasts for 5 business days unless you are otherwise advised by a police officer or other investigative officer that the order has ceased to have effect or has been extended by court order.
IMPORTANT
A financial institution that has been given notice of a freezing order must not, without reasonable excuse, fail to comply with the order under section 31K(1) of the Confiscation Act 1997. This is a summary offence. The maximum penalty for this offence is a fine of 1200 penalty units.
While a freezing order is in force, a financial institution that has been given notice of the order must not disclose the existence or operation of the order to any person except—
(a) a police officer or other investigative officer; or
(b)an officer or agent of the financial institution, for the purpose of ensuring that the freezing order is complied with; or
(c)a legal practitioner acting for the financial institution, for the purpose of obtaining legal advice or representation in relation to the freezing order; or
(d)a person in whose name the account is held or who has an interest in the account in respect of which the freezing order is made.
This is a summary offence. The maximum penalty for this offence is a fine of 1200 penalty units (section 31L(1) of the Confiscation Act 1997).
While a freezing order is in force, a police officer or investigative officer to whom the existence or operation of the freezing order is disclosed must not disclose the existence or operation of the freezing order to any person except to another police officer or investigative officer for the purpose of the performance of the officer's duties. This obligation applies for such time as the first-mentioned police officer or investigative officer continues to be a police officer or investigative officer. When the first-mentioned police officer or investigative officer is no longer a police officer or investigative officer, that person must not make a record of, or disclose, the existence or operation of the freezing order in any circumstances.
While a freezing order is in force, an officer or agent of the financial institution to whom the existence or operation of the freezing order is disclosed, must not disclose the existence or operation of the freezing order to any person except to another officer or agent of the financial institution for the purpose of ensuring that the freezing order is complied with or obtaining legal advice or representation in relation to the freezing order. This obligation applies for such time as the first-mentioned officer or agent of the financial institution continues to be an officer or agent of the financial institution. When the first-mentioned officer or agent of the financial institution is no longer an officer or agent of the financial institution, that person must not make a record of, or disclose, the existence or operation of the freezing order in any circumstances.
While a freezing order is in force, a legal practitioner acting for the financial institution to whom the existence or operation of the freezing order is disclosed, must not disclose the existence or operation of the freezing order to any person except to another legal practitioner for the purpose of giving legal advice or providing legal representation in relation to the freezing order. This obligation applies for such time as the first-mentioned legal practitioner continues to be a legal practitioner acting for the financial institution. When the first-mentioned legal practitioner is no longer a legal practitioner acting for the financial institution, that person must not make a record of, or disclose, the existence or operation of the freezing order in any circumstances.
Failure to comply with these obligations constitutes an offence under section 31L(2) of the Confiscation Act 1997. The maximum penalty for this offence is 2 years imprisonment or a fine of 240 penalty units or both.
However, the obligations described above do not prevent a person disclosing the existence or operation of a freezing order for the purposes of, or in connection with, legal proceedings or in the course of proceedings before a court. While a freezing order is in force, a police officer or investigative officer must not be required to disclose to any court the existence or operation of the freezing order.
A police officer may disclose the existence or operation of a freezing order for the purposes of a report to the Minister under section 139A(1) of the Confiscation Act 1997.
A reference in this notice 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.".
17Form 4 in Schedule 1 substituted
For Form 4 in Schedule 1 to the Principal Regulations substitute—
"FORM 4
Regulation 9
NOTICE OF FREEZING ORDER
Section 31G(2) of the Confiscation Act 1997
To [insert name of financial institution]
of [insert address of financial institution]
A freezing order under Part 2A of the Confiscation Act 1997 was made at [insert time] am/pm on [insert date] by [insert name of Magistrate].
You must not allow a person to transact in relation to the account specified below except to make deposits or the manner and circumstances specified below.
Number or description of account to be frozen
[insert account details]
Conditions, if any, to which order is subject
[insert conditions, if any]
The freezing order takes effect at the time that this notice is given to you. The freezing order lasts for 5 business days unless you are otherwise advised by a police officer or other investigative officer that the order has ceased to have effect or has been extended by court order.
IMPORTANT
A financial institution that has been given notice of a freezing order must not, without reasonable excuse, fail to comply with the order under section 31K(1) of the Confiscation Act 1997. This is a summary offence. The maximum penalty for this offence is a fine of 1200 penalty units.
While a freezing order is in force, a financial institution that has been given notice of the order must not disclose the existence or operation of the order to any person except—
(a) a police officer or other investigative officer; or
(b)an officer or agent of the financial institution, for the purpose of ensuring that the freezing order is complied with; or
(c)a legal practitioner acting for the financial institution, for the purpose of obtaining legal advice or representation in relation to the freezing order; or
(d)a person in whose name the account is held or who has an interest in the account in respect of which the freezing order is made.
This is a summary offence under section 31L(1) of the Confiscation Act 1997. The maximum penalty for this offence is a fine of 1200 penalty units.
While a freezing order is in force, a police officer or investigative officer to whom the existence or operation of the freezing order is disclosed must not disclose the existence or operation of the freezing order to any person except to another police officer or investigative officer for the purpose of the performance of the officer's duties. This obligation applies for such time as the first-mentioned police officer or investigative officer continues to be a police officer or investigative officer. When the first-mentioned police officer or investigative officer is no longer a police officer or investigative officer, that person must not make a record of, or disclose, the existence or operation of the freezing order in any circumstances.
While a freezing order is in force, an officer or agent of the financial institution to whom the existence or operation of the freezing order is disclosed must not disclose the existence or operation of the freezing order to any person except to another officer or agent of the financial institution for the purpose of ensuring that the freezing order is complied with or obtaining legal advice or representation in relation to the freezing order. This obligation applies for such time as the first-mentioned officer or agent of the financial institution continues to be an officer or agent of the financial institution. When the first-mentioned officer or agent of the financial institution is no longer an officer or agent of the financial institution, that person must not make a record of, or disclose, the existence or operation of the freezing order in any circumstances.
While a freezing order is in force, a legal practitioner acting for the financial institution to whom the existence or operation of the freezing order is disclosed must not disclose the existence or operation of the freezing order to any person except to another legal practitioner for the purpose of giving legal advice or providing legal representation in relation to the freezing order. This obligation applies for such time as the first-mentioned legal practitioner continues to be a legal practitioner acting for the financial institution. When the first-mentioned legal practitioner is no longer a legal practitioner acting for the financial institution, that person must not make a record of, or disclose, the existence or operation of the freezing order in any circumstances.
Failure to comply with these obligations constitutes an offence under section 31L(2) of the Confiscation Act 1997. The maximum penalty for this offence is 2 years imprisonment or a fine of 240 penalty units or both.
However, the obligations described above do not prevent a person disclosing the existence or operation of a freezing order for the purposes of, or in connection with, legal proceedings, or in the course of proceedings before a court. While a freezing order is in force, a police officer or investigative officer must not be required to disclose to any court the existence or operation of the freezing order.
A police officer may disclose the existence or operation of a freezing order for the purposes of a report to the Minister under section 139A(1) of the Confiscation Act 1997.
A reference in this notice 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.".
18Form 9 in Schedule 1 amended
(1)In Form 9 in Schedule 1 to the Principal Regulations, before—
"The power to seize property includes the power to remove the property, to guard the property in or on the premises, to make copies of the whole or part of the property and to issue an embargo notice under section 93 of the Confiscation Act 1997 in respect of the property."
insert—
"The power to seize property which includes a digital asset or to seize the means of accessing or gaining control of a digital asset includes the power to access or interfere with a computer or data storage device storing the asset or data related to the asset, to alter or transfer the asset or data related to the asset, and to change, transfer or perform any other transaction in relation to the asset or data related to the asset that may be required to gain exclusive control of the asset.".
(2)In Form 9 in Schedule 1 to the Principal Regulations, after—
"If reasonably necessary to do so, the person authorised to search may break open any receptacle in or on the premises for the purposes of the search."
insert—
"*Authority to give a direction under section 80A(2) of the Confiscation Act 1997
A police officer executing this warrant may direct—
[Name of specified person or persons]
of
[Address or addresses]
to provide any information or assistance that is reasonable or necessary to allow the police officer to—
* access data held in, or accessible from, a computer or data storage device that—
* is on the warrant premises;
* has been seized under this warrant and is at a place other than the warrant premises;
* copy to another data storage device data held in, or accessible from, a computer or data storage device that—
* is on the warrant premises;
* has been seized under this warrant and is at a place other than the warrant premises;
* convert into documentary form or another form intelligible to a police officer—
* data held in, or accessible from, a computer or data storage device that—
* is on the warrant premises;
* has been seized under this warrant and is at a place other than the warrant premises;
* data held in a data storage device to which the data was copied in accordance with a direction given by authority of this warrant;
* use data that—
* is recorded on a thing that is—
* on warrant premises;
* has been seized under this warrant and is at a place other than warrant premises; and
* enables access to other data held in, or accessible from, a computer or data storage device—
* to access the other data.".
19Form 10 in Schedule 1 substituted
For Form 10 in Schedule 1 to the Principal Regulations substitute—
"FORM 10
Regulation 15(a)
SEIZURE WARRANT (TAINTED PROPERTY)
Section 79A(6) of the Confiscation Act 1997
Court Ref.
This warrant is issued for the purpose of seizing tainted property described below
Description of tainted property
[insert property description]
Description of public place from which tainted property may be seized
[insert address or location of premises or place]
Nature of offence in reliance on which warrant is issued
[insert statement of nature of offence]
o person charged with offence
o person likely to be charged with offence within the next 48 hours
o person convicted of offence
o not applicable: non-conviction based forfeiture
Reasons for issue of warrant
Reasonable grounds for believing that the tainted property described above—
o is
o may be within the next 72 hours—
at the public place described above.
This warrant is issued to—
[Name, Rank, No. of police officer]
[Address]
The application for the seizure warrant was made *in writing/*by telephone.
The seizure warrant was *transmitted/*not transmitted by facsimile machine.
This warrant authorises any police officer, with the aid of any assistants considered necessary, to seize the tainted property described above. Nothing in this warrant authorises the seizure of any property not specified in the warrant, the arrest of any person, or the entry of any premises to seize property.
This warrant ceases to have effect at the end of one month after its issue, or if it is recalled and cancelled by the magistrate or judge who issued it, or when it is executed, whichever occurs first.
The police officer executing this warrant is required to produce this warrant for inspection by any person present during the execution of the warrant, if that person has an interest in the property being seized or is in charge of the property being seized.
The applicant for this warrant must give notice of the execution of the warrant to all persons known to have an interest in the property seized under the warrant as soon as practicable, but not more than 7 days after execution.
This warrant is issued under section 79A of the Confiscation Act 1997.
Issued at [time] am/pm on [date] at [place]
by [insert name of
judicial officer]*Magistrate
*Judge of the County Court
*Judge of the Supreme Court
*Delete if inapplicable.".
20New Form 10A in Schedule 1 inserted
After Form 10 in Schedule 1 to the Principal Regulations insert—
"FORM 10A
Regulation 15(b)
SEIZURE WARRANT (FORFEITED PROPERTY)
Section 79A(6) of the Confiscation Act 1997
Court Ref.
This warrant is issued for the purpose of seizing forfeited property described below
Description of forfeited property
[insert property description]
Description of public place from which forfeited property may be seized
[insert address or location of premises or place]
Nature of offence in reliance on which warrant is issued
[insert statement of nature of offence]
o person charged with offence
o person likely to be charged with offence within the next 48 hours
o person convicted of offence
o not applicable: non-conviction based forfeiture
Reasons for issue of warrant
Reasonable grounds for believing that the forfeited property described above—
o is
o may be within the next 72 hours
at the public place described above.
This warrant is issued to—
[Name, Rank, No. of police officer ]
[Address]
The application for the seizure warrant was made *in writing/*by telephone.
The seizure warrant was *transmitted/*not transmitted by facsimile machine.
This warrant authorises any police officer, with the aid of any assistants considered necessary, to seize the forfeited property described above. Nothing in this warrant authorises the seizure of any property not specified in the warrant, the arrest of any person, or the entry of any premises to seize property.
This warrant ceases to have effect at the end of the period of 6 months after its issue, or if it is recalled and cancelled by the magistrate or judge who issued it, or when it is executed, whichever occurs first.
The police officer executing this warrant is required to produce this warrant for inspection by any person present during the execution of the warrant, if that person has an interest in the property being seized or is in charge of the property being seized.
The applicant for this warrant must give notice of the execution of the warrant to all persons known to have an interest in the property seized under the warrant as soon as practicable, but not more than 7 days after execution.
This warrant is issued under section 79A of the Confiscation Act 1997.
Issued at [time] am/pm on [date] at [place]
by [insert name of
judicial officer]*Magistrate
*Judge of the County Court
*Judge of the Supreme Court
*Delete if inapplicable.".
21Form 11 in Schedule 1 amended
(1)In Form 11 in Schedule 1 to the Principal Regulations, before—
"The power to seize property includes the power to remove the property, to guard the property in or on the premises, to make copies of the whole or part of the property and to issue an embargo notice under section 93 of the Confiscation Act 1997 in respect of the property."
insert—
"The power to seize property which includes a digital asset or to seize the means of accessing or gaining control of a digital asset includes the power to access or interfere with a computer or data storage device storing the asset or data related to the asset, to alter or transfer the asset or data related to the asset, and to change, transfer or perform any other transaction in relation to the asset or data related to the asset that may be required to gain exclusive control of the asset.".
(2)In Form 11 in Schedule 1 to the Principal Regulations, after—
"If reasonably necessary to do so, the person authorised to search may break open any receptacle in or on the premises for the purposes of the search."
insert—
"*Authority to give a direction under section 80A(2) of the Confiscation Act 1997
A police officer executing this warrant may direct—
[Name of specified person or persons]
of
[Address or addresses]
to provide any information or assistance that is reasonable or necessary to allow the police officer to—
* access data held in, or accessible from, a computer or data storage device that—
* is on the warrant premises;
* has been seized under this warrant and is at a place other than the warrant premises;
* copy to another data storage device data held in, or accessible from, a computer or data storage device that—
* is on the warrant premises;
* has been seized under this warrant and is at a place other than the warrant premises;
* convert into documentary form or another form intelligible to a police officer—
* data held in, or accessible from, a computer or data storage device that—
* is on the warrant premises;
* has been seized under this warrant and is at a place other than the warrant premises;
* data held in a data storage device to which the data was copied in accordance with a direction given by authority of this warrant;
* use data that—
* is recorded on a thing that is—
* on warrant premises;
* has been seized under this warrant and is at a place other than warrant premises; and
* enables access to other data held in, or accessible from, a computer or data storage device—
* to access the other data.".
(3)In Form 11 in Schedule 1 to the Principal Regulations, after—
"(If no such person is in attendance the occupier's notice must be served as soon as practicable after the execution of the warrant, either personally or in any other manner that the judicial officer who issued the warrant may direct.)"
insert—
"OBLIGATIONS TO ASSIST POLICE OFFICER
If the warrant authorises a police officer to give a direction to a specified person or persons to provide information or assistance, that person or persons must comply with that direction if they have relevant knowledge of:
(a) the computer or data storage device or computer network of which the computer or data storage device forms or formed a part; or
(b) data recorded on a thing that enables access to other data held in, or accessible from, a computer or data storage device; or
(c) measures applied to protect—
(i)data held in, or accessible from, the computer or data storage device; or
(ii)data recorded on a thing that enables access to other data held in, or accessible from, a computer or data storage device.
Failure to comply with a direction under the warrant without reasonable excuse is an offence under section 80A(4) of the Confiscation Act 1997. The maximum penalty for this offence is 2 years imprisonment.".
22Form 16 in Schedule 1 amended
In Form 16 in Schedule 1 to the Principal Regulations, for "one month" substitute "two months".
23Form 18 in Schedule 1 amended
In Form 18 in Schedule 1 to the Principal Regulations, for "one month" substitute "two months".
24New Form 19A in Schedule 1 inserted
After Form 19 in Schedule 1 to the Principal Regulations insert—
"FORM 19A
Regulation 24A
EXAMINATION NOTICE
Section 98A of the Confiscation Act 1997
IMPORTANT: DO NOT IGNORE THIS DOCUMENT
As soon as you get this notice you should get legal advice to help you understand the notice and your obligations under the notice. Contact your lawyer or a community legal centre for advice.
[Information to the effect of the above advice to be printed in the English, Arabic, Cambodian, Chinese, Croatian, Greek, Italian, Macedonian, Polish, Serbian, Spanish, Turkish and Vietnamese languages.]
To [insert name of person]
of [insert address of person]
An examination order under section 98 of the Confiscation Act 1997 was made on [insert date] by [insert Judge's name].
Under section 98A of the Confiscation Act 1997, you are required to attend an examination at the time and place specified below.
Time [insert time of examination]
Place [insert place of examination]
You must produce the following *information or *documents at the examination:
[insert list of information or documents required (if any)]
This examination notice is given to you under section 98A of the Confiscation Act 1997 by
[insert signature of applicant for the examination order]
[insert name of applicant for the examination order]
Applicant for the examination order under section 98 of the Confiscation Act 1997.
[insert date]
*Delete if inapplicable.
WARNING
It is an offence for a person to fail, without reasonable excuse, to produce any information or document specified in an examination notice.
The maximum penalty for this offence is 2 years imprisonment or a fine of 240 penalty units or both (section 99(3) of the Confiscation Act 1997. ".
25Form 21 in Schedule 1 amended
(1)In Form 21 in Schedule 1 to the Principal Regulations, for—
"This information notice is issued to you under—
*section"
substitute—
"This information notice is issued to you under section".
(2)In Form 21 in Schedule 1 to the Principal Regulations, after—
"being a police officer of the rank of inspector or above authorised in writing by the Chief Commissioner of Police under section 118B of the Confiscation Act 1997 to issue information notices."
omit—
"*section 118E of the Confiscation Act 1997 by—
Name
Address
being a person prescribed for the purposes of section 118C of the Confiscation Act 1997 to issue information notices.".
(3)In Form 21 in Schedule 1 to the Principal Regulations, for—
"o whether an account is or has been held in the name(s) specified above, and if so, the number and current balance of that account and the account type
o the name(s) in which the account specified above is or was held, the balance of the account (if still held) and the account type"
substitute—
"*where names(s) in which account held specified—
· whether an account is or has been held in the name(s) specified above, and if so, the number and current balance of that account and the account type
· in the case of an account for a loan that is secured by property, the registered proprietors of the property securing the account for the loan, the amount secured by the property and the location of the property
· in the case of an account that is associated with digital assets, the quantum or value of the digital asset(s) associated with the account specified above, and the digital asset type(s).
*where account number specified—
· the names(s) in which the account specified above is or was held, the balance of the account (if still held) and the account type
· in the case of an account for a loan that is secured by property, the registered proprietors of the property securing the account for the loan, the amount secured by the property and the location of the property
· in the case of an account that is associated with digital assets, the quantum or value of the digital asset associated with the account specified above, and the digital asset type.".
(4)In Form 21 in Schedule 1 to the Principal Regulations, for—
"If the information notice is issued under s.118E(3)"
substitute—
"*If the information notice is issued under s.118D(3)".
(5)In Form 21 in Schedule 1 to the Principal Regulations omit—
"You are only required to provide the information indicated above in respect of an account that relates to the mortgage or other security interest secured by the above property.".
(6)In Form 21 in Schedule 1 to the Principal Regulations, for—
"by am/pm on [date] (being not less than 3 business days after the date on which this notice is given to you)."
substitute—
"by [time] am/pm on [date] (being not less than 3 business days after the date on which this notice is given to you).
Expiry of information notice
This information notice ceases to have effect 3 months from the date of issue and may be reissued within that time.".
26New Form 21A in Schedule 1 inserted
After Form 21 in Schedule 1 to the Principal Regulations insert—
"FORM 21A
Regulation 26
INFORMATION NOTICE
Section 118H of the Confiscation Act 1997
To [insert name of financial institution]
of [insert address of financial institution]
This information notice is issued to you under section 118E of the Confiscation Act 1997 by—
[insert name and title]
[insert address]
being a person prescribed for the purposes of section 118C of the Confiscation Act 1997 to issue information notices.
Name/number of account—
*Name(s) in which account held
*Account number
Information you are required to provide—
*where names(s) in which account held specified—
·whether an account is or has been held in the name(s) specified above, and if so, the number and current balance of that account and the account type
·in the case of an account for a loan that is secured by property, the registered proprietors of the property securing the account for the loan, the amount secured by the property and the location of the property
·in the case of an account that is associated with digital assets, the quantum or value of the digital asset(s) associated with the account specified above, and the digital asset type(s).
*where account number specified—
·the names(s) in which the account specified above is or was held, the balance of the account (if still held) and the account type
·in the case of an account for a loan that is secured by property, the registered proprietors of the property securing the account for the loan, the amount secured by the property and the location of the property
·in the case of an account that is associated with digital assets, the quantum or value of the digital asset associated with the account specified above, and the digital asset type.
Property details—
*If the information notice is issued under s.118E(3) of the Confiscation Act 1997
*You have been issued this information notice because it is required to manage or dispose of the following property
[insert details of property]
Other details that may assist you to identify the account
[insert details]
You must provide this information in writing to the following law enforcement agency—[specify]
(the law enforcement agency whose member or officer issued you with this information notice)
by [time] am/pm on [date] (being not less than 3 business days after the date on which this notice is given to you).
*Delete if inapplicable.
Date:
Signature:
IMPORTANT
Obligations of financial institution
It is an offence for a financial institution that has been given an information notice—
(a)without reasonable excuse, to fail to comply with the information notice; or
(b)in purported compliance with the information notice, knowingly to give information that is false or misleading in a material particular.
This is a summary offence. The maximum penalty for this offence is a fine of 1200 penalty units (section 118J of the Confiscation Act 1997).
It is an offence for a financial institution that has been given an information notice to disclose the existence of the notice to any person (including the person(s) to whom the notice relates) except—
(a)a police officer, if the notice specifies Victoria Police as the law enforcement agency to which the information must be given; or
(b)if the notice specifies another authority or person as the law enforcement agency to which the information must be given, a member, officer or employee of the agency; or
(c)an officer or agent of the financial institution, for the purpose of ensuring that the notice is complied with; or
(d)a legal practitioner acting for the financial institution, for the purpose of obtaining legal advice or representation in relation to the notice.
This is a summary offence. The maximum penalty for this offence is a fine of 1200 penalty units (section 118K(1) of the Confiscation Act 1997).
Obligations of people to whom existence of information notice is disclosed
A person to whom the existence of an information notice is disclosed in accordance with the exceptions above must not disclose the existence of the notice to any person other than in the circumstances described below.
A police officer or a member, officer or employee of another authority or person specified in an information notice as the law enforcement agency to which the information is to be given may disclose the existence of the notice to another person of that kind for the purpose of the performance of his or her duties.
An officer or agent of the financial institution may disclose the existence of the notice to another officer or agent of the financial institution for the purpose of ensuring that the notice is complied with or obtaining legal advice or representation in relation to the notice.
A legal practitioner acting for the financial institution may disclose the existence of the notice for the purpose of giving legal advice or providing representation in relation to the notice.
When the police officer, member, officer or employee of another authority or person specified as the law enforcement agency, officer or agent of the financial institution or legal practitioner acting for the financial institution (as the case may be) ceases to be such a person, the person must not make a record of, or disclose, the existence of the information notice in any circumstances.
Failure to comply with these obligations constitutes an offence. The maximum penalty for this offence is 2 years imprisonment or a fine of 240 penalty units or both (section 118K(2) of the Confiscation Act 1997).
It is not an offence to disclose the existence of an information notice if the existence of the notice has been made known in any proceedings in open court.
It is also not an offence for a person to whom the existence of an information notice has been disclosed to disclose the existence of the notice for the purposes of, or in connection with, legal proceedings or in the course of proceedings before a court.
It is not an offence for a police officer or a member, officer or employee of an authority or person specified in an information notice as the law enforcement agency to which the information is to be given to disclose the existence of the information notice for the purposes of a report to the Minister under section 139A(1) or (2) of the Confiscation Act 1997.
A reference to disclosing the existence of an information notice to a person includes a reference to disclosing information to the person from which the person could reasonably be expected to infer the existence of the notice.
Immunity from suit
No civil proceeding lies against a financial institution or an officer, employee or agent of the financial institution acting in the course of that person's duties, in relation to any action taken or information given by the institution or person in compliance with an information notice (section 118L of the Confiscation Act 1997).".
27Form 22 in Schedule 1 amended
(1)In Form 22 in Schedule 1 to the Principal Regulations, for—
"pecuniary penalty order described below.
Description of pecuniary penalty order—"
substitute—
"order described below.
Description of pecuniary penalty order or order under section 12 of the Crimes (Confiscation of Profits) Act 1986 before its repeal—".
(2)In Form 22 in Schedule 1 to the Principal Regulations, after—
"The maximum penalty for each of these offences is a fine of 60 penalty units.".
insert—
"It is an offence for a person who is given a document request to disclose the existence of the document request to any person (including the person to whom the request relates) except—
(a)to the person who made the request or a member or an officer or employee of the person who made the request; or
(b)to a person belonging to a prescribed class of persons; or
(c)if the request was made to an entity, to an officer or agent of the entity, for the purpose of ensuring that the request is complied with; or
(d)to a legal practitioner acting for the person to whom the request has been made, for the purpose of obtaining legal advice or representation in relation to the request; or
(e)to a person for the purpose of obtaining advice or assistance that may reasonably be required to comply with the request, if doing so is not reasonably likely to result in the person to whom the request relates becoming aware of the request.
This is a summary offence. The maximum penalty for this offence is a fine of 1200 penalty units (section 120CA(1) of the Confiscation Act 1997).".
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ENDNOTES
[1] Reg. 4: S.R. No. 43/2019 as amended by S.R. No. 21/2022.
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