Major Crime and Community Safety Legislation Amendment Act 2022 (Vic)

Major Crime and Community Safety Legislation Amendment Act 2022

No. 44 of 2022

table of provisions

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of Confiscation Act 1997

Division 1—Digital assets

3Definitions

4Freezing order

5Application for freezing order

6Making of freezing order

7When does a freezing order take effect?

8Extension of freezing orders

9What can an information notice require?

Division 2—Search warrants and seizure warrants

10Definitions

11Seizure warrants—public places

12New sections 80A, 80B and 80C inserted

13Expiry of warrant

14New section 92A inserted

Division 3—Exclusion applications

15Determination of exclusion application—serious drug offence restraining order

16Application for exclusion from civil forfeiture order

17Application for exclusion from unexplained wealth forfeiture

18Application for exclusion from forfeiture order

19Application for exclusion from automatic forfeiture

20Application for exclusion from automatic forfeiture of property of serious drug offender

21Determination of application from exclusion from automatic forfeiture of property of serious drug offender

Division 4—Partial forfeiture of tainted property, proceeds of sale of forfeited residence

22Determination of application for forfeiture order

23Relief from automatic forfeiture of property of serious drug offender

Division 5—Investigative officers

24Definitions

25Application for freezing order

26Application may be made by telephone or other electronic communication

27Notice of freezing order

28Offence to disclose existence of freezing order

29Warrant may be granted by telephone

30New section 99A inserted

31Production orders

32Powers under production orders

33Failure to comply with production order

Division 6—Enforcement of pecuniary penalty orders against real property and document requests relating to enforcement of pecuniary penalty orders

34Charge on property subject to restraining order or declaration

35New sections 73A, 73B, 73C and 73D inserted

36New section 120CA inserted

Division 7—Pecuniary penalty orders under the Crimes (Confiscation of Profits) Act 1986

37Issuing information notices—prescribed person

38Document request relating to enforcement of pecuniary penalty order

Division 8—Examination orders and information gathering powers

39Definitions

40New section 98A inserted

41Examination

42Application for production order—relevant offence

43Production orders

44Issuing information notices—authorised police officer

45What can an information notice require?

46New Division 3B of Part 13 inserted

Division 9—Restraining orders

47Purposes for which a restraining order may be made

48Property may be subject to both restraining order and other orders

49Determination of application

50Duration and setting aside of restraining order

51New section 27A inserted

52Registration of restraining order

53New section 28A inserted

54State to pay restitution and compensation out of forfeited property etc.

Division 10—Miscellaneous

55Definitions

56Meaning of absconds

57Effective control of property

58Protected property not to be included in serious drug offence restraining order

59Duration and setting aside of restraining order

60Notice of freezing order

61When does a freezing order take effect?

62Extension of freezing orders

63Expiry of search and inspection warrant

64Expiry of search and seizure warrant

65Issuing information notices—prescribed person

66Information notices

67Registration of interstate orders

68Service of documents

69Schedule 2 amended

Division 11—Statute law revision and transitional provisions

70Relief from unexplained wealth forfeiture

71New section 194 inserted

Part 3—Amendment of Crimes Act 1958

Division 1—Search warrants

72New section 464ZT inserted

73Issue of search warrant by magistrate

74New sections 465AAAA, 465AAAAB, 465AAAAC, 465AAAAD, 465AAAAE and 465AAAAF inserted

75Warrants may authorise the giving of a direction requiring assistance from person with knowledge of a computer or computer network

76Power to require assistance from person with knowledge of a computer or computer network

77New sections 465AAB, 465AAC, 465AAD and 465AAE inserted

78Application for tainted property to be held or retained

79New section 465F inserted

Division 2—Fingerprinting

80Fingerprinting of adults and children aged 15 or above

81Fingerprinting of children aged 14 or under

82New section 464NB inserted

83Destruction of records

Division 3—Transitional provision

84Transitional provision

Part 4—Amendment of Crimes (Assumed Identities) Act 2004

Division 1—Assumed identity

85Application for authority to acquire or use assumed identity

86Determination of applications

87Form of authority

88Delegation of chief officer's functions

Division 2—Transitional provision

89Transitional provision

Part 5—Amendment of Drugs, Poisons and Controlled Substances Act 1981

90Part 3 of  Schedule Eleven amended

Part 6—Amendment of Sex Work Decriminalisation Act 2022

91Schedule 2 amended

Part 7—Repeal of this Act

92Repeal of this Act

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Endnotes

1      General information

Major Crime and Community Safety Legislation Amendment Act 2022

No. 44 of 2022

[Assented to 27 September 2022]

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to amend the Confiscation Act 1997 in relation to—

(i)digital assets; and

(ii)search warrants and seizure warrants; and

(iii)exclusion applications; and

(iv)the partial forfeiture of tainted property and the proceeds of sale of forfeited residences of serious drug offenders; and

(v)the enforcement of pecuniary penalty orders against real property and the disclosure of the existence of, or information relating to, document requests for the enforcement of pecuniary penalty orders; and

(vi)information gathering powers and examinations; and

(vii)the enforcement of pecuniary penalty orders under the Crimes (Confiscation of Profits) Act 1986 before its repeal; and

(viii)restraining orders; and

(ix)Schedule 2 offences; and

(x)miscellaneous matters to improve the operation of that Act; and

(b)to amend the Crimes Act 1958 in relation to—

(i)search warrant powers under that Act; and

(ii)the lodgement of search warrant reports with the Magistrates' Court; and

(iii)the retention, destruction, disclosure and use of fingerprints taken from persons under that Act; and

(c)to amend the Crimes (Assumed Identities) Act 2004 in relation to—

(i)the circumstances in which authorised civilians, who are Victoria Police employees, can be authorised to assume identities under that Act; and

(ii)the delegation of the Chief Commissioner of Police's powers under that Act; and

(d)to amend the Drugs, Poisons and Controlled Substances Act 1981 in relation to the quantity of 1,4-Butanediol that will trigger automatic forfeiture provisions in the Confiscation Act 1997; and

(e)to amend the Sex Work Decriminalisation Act 2022 consequential on the amendment of Schedule 2 to the Confiscation Act 1997.

2Commencement

(1)This Part and Part 6 come into operation on the day after the day on which this Act receives the Royal Assent.

(2)Parts 2 (other than Divisions 1, 2, 5, 6, 7, 8 and sections 53, 60, 61, 63, 64, 65 and 66) and 5 come into operation on 14 November 2022.

(3)Subject to subsection (4), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(4)If a provision referred to in subsection (3) does not come into operation before 1 August 2023, it comes into operation on that day.

Part 2—Amendment of Confiscation Act 1997

Division 1—Digital assets

3Definitions

(1)In section 3(1) of the Confiscation Act 1997, after paragraph (d) of the definition of account insert—

"(e)a digital wallet, digital profile or any other facility or arrangement provided by a financial institution for the storing, buying, selling or exchanging of digital assets or claims to digital assets;".

(2)In section 3(1) of the Confiscation Act 1997, in the definition of financial institution—

(a)after paragraph (d) insert—

"(da)a provider of a registrable digital currency exchange service within the meaning of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth; or"; and

(b)in paragraph (f), for "2003;" substitute "2003; or"; and

(c)after paragraph (f) insert—

"(g)a prescribed entity or an entity of a prescribed class;".

(3)In section 3(1) of the Confiscation Act 1997 insert the following definition—

"digital asset means a digital representation of value, or contractual rights, that may be transferred, stored or traded electronically;".

4Freezing order

(1)In section 31C(1) of the Confiscation Act 1997, for "make withdrawals from a specified account" substitute "transact in relation to a specified account".

(2)For section 31C(2) of the Confiscation Act 1997 substitute—

"(2)Despite subsection (1), a financial institution may accept deposits into an account in relation to which the freezing order was made after the order takes effect.

(2A)For the purposes of a freezing order, any money or digital asset deposited into the account after the freezing order was made is subject to the freezing order.".

5Application for freezing order

(1)In section 31D(1A) of the Confiscation Act 1997—

(a)in paragraph (a), after "money" insert "or is associated with a digital asset"; and

(b)in paragraph (b), after "money in" insert ", or a digital asset associated with,".

(2)In section 31D(1B)(b) of the Confiscation Act 1997, after "money held in" insert ", or a digital asset associated with,".

6Making of freezing order

In section 31F(2)(a) of the Confiscation Act 1997, for "money in" substitute "money in, or quantum or value of any digital asset associated with,".

7When does a freezing order take effect?

In section 31H(2)(a) of the Confiscation Act 1997, for "money in" substitute "money in, or digital asset associated with,".

8Extension of freezing orders

(1)In section 31I(2)(b)(i) of the Confiscation Act 1997, for "money in" substitute "money in, or digital asset associated with,".

(2)In section 31I(3)(b)(i) and (ii) of the Confiscation Act 1997, for "money in" substitute "money in, or digital asset associated with,".

(3)In section 31I(5) of the Confiscation Act 1997, for "money in" substitute "money in, or digital asset associated with,".

(4)In section 31I(7)(a) and (b) of the Confiscation Act 1997, for "money in" substitute "money in, or digital asset associated with,".

9What can an information notice require?

After section 118G(1) of the Confiscation Act 1997 insert—

"(1AA)In addition, in the case of an information notice referred to in section 118G(1) that relates to an account that is associated with digital assets, the information notice may also require information about—

(a)the type of digital asset; and

(b)the quantum or value of that digital asset.".

Division 2—Search warrants and seizure warrants

10Definitions

In section 3(1) of the Confiscation Act 1997 insert the following definitions—

"access, in relation to data held in a computer, means—

(a)the display of the data by the computer or any other output of the data from the computer; or

(b)the copying or moving of the data to any other place in the computer or to a data storage device; or

(c)in the case of a program, the execution of the program;

data includes—

(a)information in any form; and

(b)any program or part of a program;

data held in a computer includes—

(a)data entered or copied into the computer; and

(b)data held in any removable data storage device for the time being in the computer; and

(c)data held in a data storage device on a computer network of which the computer forms part;

data storage device means any thing (for example, a disk, external hard drive or file server) containing or designed to contain data for use by a computer;".

11Seizure warrants—public places

For section 79A(1) of the Confiscation Act 1997 substitute—

"(1)The following may apply to a magistrate or to a judge of the Supreme Court or County Court for a seizure warrant to be issued under this Part—

(a)in the case of an application in respect of tainted property which is at a public place—a police officer;

(b)in the case of an application in respect of property forfeited under this Act which is at a public place—a police officer or a person who holds a prescribed office or a person belonging to a prescribed class.".

12New sections 80A, 80B and 80C inserted

After section 80 of the Confiscation Act 1997 insert—

"80A   Warrant may authorise the giving of a direction requiring assistance from person with certain knowledge

(1)Subject to subsection (3), a warrant issued under section 79 may authorise a police officer executing the warrant to give a direction under subsection (2) to a specified person.

(2)A police officer may direct a specified person to provide any information or assistance that is reasonable and necessary to allow the police officer to do one or more of the following things—

(a)access data held in, or accessible from, a computer or data storage device that—

(i)is on the premises in respect of which the warrant is issued (warrant premises); or

(ii)has been seized under the warrant and is at a place other than warrant premises;

(b)copy to another data storage device data held in, or accessible from, a computer or data storage device described in paragraph (a);

(c)convert into documentary form or another form intelligible to a police officer—

(i)data held in, or accessible from, a computer or data storage device described in paragraph (a); or

(ii)data held in a data storage device to which the data was copied as described in paragraph (b);

(d)use data—

(i)that is recorded on a thing that is—

(A)on warrant premises; or

(B)has been seized under the warrant and is at a place other than warrant premises; and

(ii)that enables access to other data held in, or accessible from, a computer or data storage device—

to access the other data.

(3)A warrant may authorise the giving of a direction under subsection (2) if the magistrate or judge issuing the warrant is satisfied that—

(a)there are reasonable grounds for suspecting that data held in, or accessible from, a computer or data storage device described in subsection (2)(a), or recorded on a thing as described in subsection (2)(d), will assist in finding the location of, or means of access to, tainted property or forfeited property; and

(b)the specified person is—

(i)reasonably suspected of having committed the offence in reliance on which the warrant is issued; or

(ii)the owner or lessee of the computer, data storage device or thing; or

(iii)an employee of the owner or lessee of the computer, or data storage device or thing; or

(iv)a person engaged under a contract for services by the owner or lessee of the computer, data storage device or thing; or

(v)a person who uses or has used the computer, data storage device or thing; or

(vi)a person who is or was a system administrator for the computer network of which the computer or data storage device forms or formed a part; and

(c)the specified person has relevant knowledge of—

(i)the computer or data storage device or a computer network of which the computer or data storage device forms or formed a part or may be accessed; or

(ii)data recorded on a thing that enables access to other data held in, or accessible from, a computer or data storage device; or

(iii)measures applied to protect—

(A)data held in, or accessible from, the computer or data storage device; or

(B)data recorded on a thing that enables access to other data held in, or accessible from, a computer or data storage device to access the other data.

(4)A person commits an offence if—

(a)the person has relevant knowledge of—

(i)the computer or data storage device or computer network of which the computer or data storage device forms or formed a part; or

(ii)data recorded on a thing that enables access to other data held in, or accessible from, a computer or data storage device; or

(iii)measures applied to protect—

(A)data held in, or accessible from, the computer or data storage device; or

(B)data recorded on a thing that enables access to other data held in, or accessible from, a computer or data storage device; and

(b)the person is informed by a police officer—

(i)of the authorisation to give the direction under subsection (2) and of its terms; and

(ii)that it is an offence to fail to comply with the direction; and

(c)the person fails to comply with the direction without reasonable excuse.

(5)A person who commits an offence against subsection (4) is liable to level 7 imprisonment (2 years maximum).

(6)A person is not excused from complying with a direction under subsection (2) on the ground that complying with it may result in information being provided that might incriminate the person.

80BPower to require assistance from person with certain knowledge

(1)This section applies if a magistrate or a judge has issued a warrant under section 79.

(2)The Magistrates' Court, Supreme Court or County Court (as the case may be), on the application of a police officer, may make an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow a police officer to do one or more of the things specified in subsection (3).

(3)The things are—

(a)access data held in, or accessible from, a computer or data storage device that—

(i)is on the premises in respect of which the warrant is issued (warrant premises); or

(ii)has been seized under the warrant and is at a place other than warrant premises; or

(b)copy to another data storage device data held in, or accessible from, a computer or data storage device described in paragraph (a); or

(c)convert into documentary form or another form intelligible to a police officer—

(i)data held in, or accessible from, a computer or data storage device described in paragraph (a); or

(ii)data held in a data storage device to which the data was copied as described in paragraph (b); or

(d)use data—

(i)that is recorded on a thing that is—

(A)on warrant premises; or

(B)has been seized under the warrant and is at a place other than warrant premises; and

(ii)that enables access to other data held in, or accessible from, a computer or data storage device—

to access the other data.

(4)An application may be made under subsection (2) at the same time as an application is made for the warrant under section 79 or at any time after the issue of the warrant.

(5)The Magistrates' Court, Supreme Court or County Court (as the case may be) may make the order if satisfied that—

(a)there are reasonable grounds for suspecting that data held in, or accessible from, a computer, or data storage device, described in subsection (3)(a) or recorded on a thing described in subsection (3)(d) will assist in finding the location of, or means of access to, tainted property or forfeited property; and

(b)the specified person is—

(i)reasonably suspected of having committed the offence in reliance on which the warrant was issued; or

(ii)the owner or lessee of the computer, data storage device or thing; or

(iii)an employee of the owner or lessee of the computer, data storage device or thing; or

(iv)a person engaged under a contract for services by the owner or lessee of the computer, data storage device or thing; or

(v)a person who uses or has used the computer, data storage device or thing; or

(vi)a person who is or was a system administrator for the computer network of which the computer or data storage device forms or formed a part; and

(c)the specified person has relevant knowledge of—

(i)the computer or data storage device or a computer network of which the computer or data storage device forms or formed a part; or

(ii)data recorded on a thing that enables access to other data held in, or accessible from, a computer or data storage device; or

(iii)measures applied to protect—

(A)data held in, or accessible from, the computer or data storage device; or

(B)data recorded on a thing that enables access to other data held in, or accessible from, a computer or data storage device.

(6)A person is not excused from complying with an order on the ground that complying with it may result in information being provided that might incriminate the person.

(7)If—

(a)the computer, data storage device or thing that is the subject of the order is seized under the warrant; and

(b)the order was granted on the basis of an application made before the seizure—

the order does not have effect on or after the completion of the execution of the warrant.

Note

An application for another order under this section relating to the computer, data storage device or thing may be made after the completion of the execution of the warrant.

(8)If the computer, data storage device or thing is not on warrant premises, the order must—

(a)specify the period within which the person must provide the information or assistance; and

(b)specify the place at which the person must provide the information or assistance; and

(c)specify the conditions (if any) to which the requirement to provide the information or assistance is subject.

(9)This section applies in addition to section 80A, whether or not in relation to the same specified person. However, a person may be charged with an offence against either section 80A(4) or 80C(1) but not both.

(10)A magistrate or judge may administer an oath or affirmation or take an affidavit for the purposes of an application under this section.

80COffence to fail to comply with order requiring assistance

(1)A person commits an offence if—

(a)the person has relevant knowledge of—

(i)the computer or data storage device or a computer network of which the computer or data storage device forms or formed a part; or

(ii)data recorded on a thing that enables access to other data held in, or accessible from, a computer or data storage device; or

(iii)measures applied to protect—

(A)data held in, or accessible from, the computer or data storage device; or

(B)data recorded on a thing that enables access to other data held in, or accessible from, a computer or data storage device; and

(b)the person is informed by a police officer—

(i)of the order made under section 80B and of its terms; and

(ii)that it is an indictable offence punishable by imprisonment to fail to comply with the order; and

(c)the person fails to comply with the order without reasonable excuse.

(2)A person who commits an offence against subsection (1) is liable to level 6 imprisonment (5 years maximum).".

13Expiry of warrant

(1)In section 88 of the Confiscation Act 1997, after "seizure warrant" insert "(other than a seizure warrant referred to in subsection (2))".

(2)At the end of section 88 of the Confiscation Act 1997 insert—

"(2)A seizure warrant authorising a police officer to seize forfeited property specified in the warrant from a public place ceases to have effect—

(a)at the end of the period of 6 months after its issue; or

(b)if it is recalled and cancelled by the magistrate or judge who issued it; or

(c)when it is executed—

whichever occur first.".

14New section 92A inserted

After section 92 of the Confiscation Act 1997 insert—

"92A   Seizure of digital asset under search warrant

(1)This section applies if a police officer executing a search warrant is authorised by that warrant or section 92 to—

(a)seize property which includes a digital asset; or

(b)seize the means of accessing or gaining control of a digital asset.

(2)The police officer may do one or more of the following things for the purpose of securing and seizing the digital asset—

(a)access a computer or data storage device storing the asset or data related to the asset;

(b)interfere with a computer or data storage device storing the asset or data related to the asset;

(c)alter or transfer the asset or data related to the asset;

(d)change or 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.

(3)The police officer may do a thing referred to in subsection (2) using a computer or data storage device whether or not the computer or data storage device—

(a)was seized under the warrant; or

(b)is located at the address specified in the search warrant.".

Division 3—Exclusion applications

15Determination of exclusion application—serious drug offence restraining order

For section 22A(1) of the Confiscation Act 1997 substitute—

"(1)On an application made under section 20 the court may make an order excluding the applicant's interest in property from the operation of a serious drug offence restraining order made in relation to a serious drug offence—

(a)if the court is satisfied that—

(i)the property is not tainted property or derived property; and

(ii)the applicant was not, in any way, involved in the commission of the serious drug offence; and

(iii)the applicant's interest in the property was not subject to the effective control of the accused on the earlier of—

(A)the date that the accused was charged with the serious drug offence; or

(B)the date that the serious drug offence restraining order was made in relation to the property; and

(iv)where the applicant acquired the interest from the accused, directly or indirectly, it was acquired for sufficient consideration; or

(b)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—

(i)where the applicant acquired the interest before the commission, or alleged commission, of the serious drug 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 serious drug offence; and

(ii)where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the serious drug 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

(iii)the applicant's interest in the property was not subject to the effective control of the accused on the earlier of—

(A)the date that the accused was charged with the serious drug offence; or

(B)the date that the restraining order was made in relation to the property; and

(iv)where the applicant acquired the interest from the accused, directly or indirectly, it was acquired for sufficient consideration; and

(v)the applicant was not, in any way, involved in the commission of the serious drug offence.".

16Application for exclusion from civil forfeiture order

(1)In section 40A(3) and (5) of the Confiscation Act 1997, for "subsection (5A)" substitute "subsections (5A) and (5B)".

(2)After section 40A(5A) of the Confiscation Act 1997 insert—

"(5B)The court may not grant a person leave under subsection (3) or (5) to make an application in respect of property that is money if the money was forfeited more than 6 months before the application for leave.".

17Application for exclusion from unexplained wealth forfeiture

(1)In section 40ZC(3) of the Confiscation Act 1997, for "subsection (4)" substitute "subsections (4) and (4A)".

(2)After section 40ZC(4) of the Confiscation Act 1997 insert—

"(4A)The court may not grant a person leave under subsection (3) to make an application in respect of property that is money if the money was forfeited more than 6 months before the application for leave.".

18Application for exclusion from forfeiture order

(1)In section 49(3) of the Confiscation Act 1997, for "subsection (3A)" substitute "subsections (3A) and (3B)".

(2)After section 49(3A) of the Confiscation Act 1997 insert—

"(3B)The court may not grant a person leave under subsection (3) to make an application in respect of property that is money if the money was forfeited more than 6 months before the application for leave.".

19Application for exclusion from automatic forfeiture

(1)In section 51(3) and (5) of the Confiscation Act 1997, for "subsection (5A)" substitute "subsections (5A) and (5B)".

(2)After section 51(5A) of the Confiscation Act 1997 insert—

"(5B)The court may not grant a person leave under subsection (3) or (5) to make an application in respect of property that is money if the money was forfeited more than 6 months before the application for leave.".

20Application for exclusion from automatic forfeiture of property of serious drug offender

(1)In section 53(3) and (5) of the Confiscation Act 1997, for "subsection (6)" substitute "subsections (6) and (6A)".

(2)After section 53(6) of the Confiscation Act 1997 insert—

"(6A)The court may not grant a person leave under subsection (3) or (5) to make an application in respect of property that is money if the money was forfeited more than 6 months before the application for leave.".

21Determination of application from exclusion from automatic forfeiture of property of serious drug offender

For section 54(1) of the Confiscation Act 1997 substitute—

"(1)On an application made under section 53, the court may make an order excluding the applicant's interest in property from the operation of section 36GA—

(a)if the court is satisfied that—

(i)the property is not tainted property or derived property; and

(ii)the applicant was not, in any way, involved in the commission of the serious drug offence in relation to which the relevant serious drug offence restraining order was made; and

(iii)the applicant's interest in the property was not subject to the effective control of the accused on the earlier of—

(A)the date that the accused was charged with the serious drug offence; or

(B)the date that the serious drug offence restraining order was made in relation to the property; and

(iv)where the applicant acquired the interest from the accused, directly or indirectly, it was acquired for sufficient consideration; or

(b)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—

(i)where the applicant acquired the interest before the commission, or alleged commission, of the serious drug 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 serious drug offence; and

(ii)where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the serious drug 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

(iii)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 serious drug offence or the date that the restraining order was made in relation to the property; and

(iv)where the applicant acquired the interest from the accused, directly or indirectly, it was acquired for sufficient consideration; and

(v)the applicant was not, in any way, involved in the commission of the serious drug offence.".

Division 4—Partial forfeiture of tainted property, proceeds of sale of forfeited residence

22Determination of application for forfeiture order

(1)In section 33(1) of the Confiscation Act 1997, after ", or such" insert "portion".

(2)For section 33(2) of the Confiscation Act 1997 substitute—

"(2)A forfeiture order—

(a)must specify interests in property to which it applies; and

(b)may specify the nature, extent or value of the property to which it applies.".

23Relief from automatic forfeiture of property of serious drug offender

(1)After section 45A(5) of the Confiscation Act 1997 insert—

"(5A)For the purposes of subsection (5), the court may order that the payment be divided between 2 or more dependents as specified in the order.".

(2)The example at the foot of section 45A(5) of the Confiscation Act 1997 is repealed.

Division 5—Investigative officers

24Definitions

In section 31A of the Confiscation Act 1997, for the definition of authorised police officer substitute—

"investigative officer means—

(a)a person authorised under section 31B; or

(b)a person belonging to a class authorised under section 31B; or

(c)a person who holds a prescribed office; or

(d)a person belonging to a prescribed class of investigative officer.".

25Application for freezing order

In section 31D(1), (1A) and (1B) of the Confiscation Act 1997, for "authorised police officer" substitute "investigative officer".

26Application may be made by telephone or other electronic communication

In section 31E(1) of the Confiscation Act 1997, for "authorised police officer" substitute "investigative officer".

27Notice of freezing order

(1)In section 31G(1) of the Confiscation Act 1997, after "police officer" (where twice occurring) insert "or investigative officer".

(2)In section 31G(2) of the Confiscation Act 1997, after "police officer" (where twice occurring) insert "or investigative officer".

28Offence to disclose existence of freezing order

(1)In section 31L(1)(a) of the Confiscation Act 1997, after "police officer" insert "or investigative officer".

(2)In section 31L(2)(a)(i) of the Confiscation Act 1997—

(a)after "police officer" insert "or investigative officer"; and

(b)after "police officer's" insert "or investigative officer's".

(3)In section 31L(5) of the Confiscation Act 1997, after "police officer" insert "or investigative officer".

29Warrant may be granted by telephone

(1)In section 81(1) of the Confiscation Act 1997—

(a)for "a police officer" substitute "an applicant for a warrant under section 79 or 79A";

(b)for "the police officer" substitute "the applicant".

(2)In section 81(2) and (3) of the Confiscation Act 1997, for "the police officer" substitute "the applicant".

30New section 99A inserted

Before section 100 of the Confiscation Act 1997 insert—

"99A   Definition

In this Division—

investigative officer means—

(a)a police officer; or

(b)a person who holds a prescribed office; or

(c)a person belonging to a prescribed class of investigative officer.".

31Production orders

In section 101(2) of the Confiscation Act 1997, for "police officer" (where twice occurring) substitute "investigative officer".

32Powers under production orders

In section 102(1), (2) and (3) of the Confiscation Act 1997, for "police officer" (wherever occurring) substitute "investigative officer".

33Failure to comply with production order

In section 108(1) of the Confiscation Act 1997, for "police officer" (where twice occurring) substitute "investigative officer".

Division 6—Enforcement of pecuniary penalty orders against real property and document requests relating to enforcement of pecuniary penalty orders

34Charge on property subject to restraining order or declaration

(1)After section 72(3)(a) of the Confiscation Act 1997 insert—

"(ab)the restraining order is set aside or ceases to be in force with respect to the property;".

(2)In section 72(5) of the Confiscation Act 1997, after "or declaration" insert "or a prescribed person or a person belonging to a prescribed class of persons".

(3)After section 72(5) of the Confiscation Act 1997 insert—

"(5A)In the case of a charge on land that is under the operation of the Transfer of Land Act 1958, and that is registered in accordance with subsection (5), the Minister must give written notice to—

(a)a person whose interest in land is subject to a charge created by subsection (1) or (2); and

(b)any other person recorded in the Register kept under the Transfer of Land Act 1958 as having a registered interest in the land that—

(i)the land is charged under this section with the amount stated in the notice; or

(ii)the charge has been removed.".

(4)In section 72(7) of the Confiscation Act 1997, after "the applicant for the declaration" insert "or a prescribed person or a person belonging to a prescribed class of persons".

35New sections 73A, 73B, 73C and 73D inserted

After section 73 of the Confiscation Act 1997 insert—

"73A   Notice of intention to sell charged land

(1)If a charge on land registered under section 72(5) has been recorded for at least 28 days, the Minister may serve a notice of intention to sell the land on all persons recorded in the Register kept under the Transfer of Land Act 1958 as having an interest in the land.

(2)A notice under subsection (1) must—

(a)be in writing and contain the prescribed particulars; and

(b)be served on each person.

73BPower of sale

(1)The Minister may apply to the Supreme Court for an order for the sale of land charged under section 72 if—

(a)a notice of intention to sell charged land has been served on a person in accordance with section 73A; and

(b)at least 14 days have passed since that service; and

(c)any appeal period has expired or any application for an order under section 20, 36U or 40R is finally determined, whichever is later.

(2)The Supreme Court may make an order for the sale of the charged land by the Minister if satisfied that it is appropriate to do so.

(3)Without limiting the Supreme Court's power under subsection (2), the Supreme Court may—

(a)order the production of a certificate of title or any other document required by the Registrar of Titles; and

(b)make any additional orders that it considers appropriate in the circumstances—

(i)in relation to the interest in the land of any person; and

(ii)for giving effect to the order; and

(iii)for ensuring an effective commercial sale process.

73CSale to be treated as sale by mortgagee

Section 77 of the Transfer of Land Act 1958 applies to a sale pursuant to an order under section 73B as if—

(a)the charge were a registered mortgage; and

(b)the Minister were a mortgagee under that mortgage; and

(c)the requirement in that section relating to the giving of notice were deleted.

73DPowers of Registrar of Titles

The Registrar of Titles may make any recording in the Register kept under the Transfer of Land Act 1958 that is necessary because of the operation of this Part.".

36New section 120CA inserted

After section 120C of the Confiscation Act 1997 insert—

"120CA   Offence to disclose existence of document request

(1)Subject to subsection (6), a person who is given, or has been given, a document request must not 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 is or 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.

Penalty:Level 5 fine (1200 penalty units maximum).

(2)Subject to subsection (6), a person to whom the existence of a document request is disclosed in accordance with subsection (1) must not—

(a)while the person is a person referred to in subsection (1)(c), (d) or (e), disclose the existence of the request to any person except another person referred to in subsection (1)(c), (d) or (e) for the purpose of—

(i)if the disclosure is made by a person referred to in subsection (1)(c), ensuring that the document request is complied with or obtaining legal advice or representation in relation to the document request; or

(ii)if the disclosure is made by a person referred to in subsection (1)(d), giving legal advice or providing representation in relation to the request; or

(iii)if the disclosure is made by a person referred to in subsection (1)(e), providing advice or assistance that may reasonably be required to comply with the request; or

(b)when the person is no longer a person referred to in subsection (1)(c), (d) or (e), make a record of, or disclose, the existence of the request in any circumstances.

Penalty:Level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both.

(3)Nothing in subsection (2) prevents the disclosure by a person referred to in subsection (1)(c), (d) or (e) of the existence of a document request—

(a)for the purposes of, or in connection with, legal proceedings; or

(b)in the course of proceedings before a court.

(4)A reference in this section to disclosing the existence of a document request 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 document request.

(5)An offence against subsection (1) is a summary offence.

(6)It is not an offence under this section to disclose the existence of a document request if the existence of the document request has been made known in any proceedings in open court.".

Division 7—Pecuniary penalty orders under the Crimes (Confiscation of Profits) Act 1986

37Issuing information notices—prescribed person

In section 118E(1) of the Confiscation Act 1997, after "pecuniary penalty order" insert "or an order under section 12 of the Crimes (Confiscation of Profits) Act 1986 before its repeal".

38Document request relating to enforcement of pecuniary penalty order

In section 120AB(1) of the Confiscation Act 1997, after "pecuniary penalty order" insert "or an order under section 12 of the Crimes (Confiscation of Profits) Act 1986 before its repeal".

Division 8—Examination orders and information gathering powers

39Definitions

In section 3(1) of the Confiscation Act 1997 insert the following definition—

"examination notice means a notice given under section 98A(1);".

40New section 98A inserted

After section 98 of the Confiscation Act 1997 insert—

"98A   Examination notice

(1)Subject to subsection (2), a relevant person may give to a person who is the subject of an order for examination under section 98(2) or (2B) a written notice requiring the person to produce at the examination the information or documents specified in the notice.

(2)An examination notice must—

(a)be in the prescribed form; and

(b)require the person to produce the information or documents specified in the notice at the examination; and

(c)specify the time and place of the examination; and

(d)specify any other prescribed matters.

(3)In this section—

relevant person has the same meaning as it has in section 98.".

41Examination

(1)In section 99(1) of the Confiscation Act 1997—

(a)after "98(2)" insert "or (2B)"; and

(b)after "answer a question" insert ", or refuse or fail to produce any information or document specified in an examination notice,".

(2)In section 99(2) of the Confiscation Act 1997—

(a)for "question" substitute "question, or producing any information or document specified in an examination notice,"; and

(b)after "section 98(2)" insert "or (2B) or produced under an examination notice,".

(3)In section 99(2A) of the Confiscation Act 1997—

(a)for "question" substitute "question, or producing any information or document specified in an examination notice,"; and

(b)after "section 98(2)" insert "or (2B) or produced under an examination notice,".

(4)In section 99(3) of the Confiscation Act 1997—

(a)after "98(2)" insert "or (2B)"; and

(b)after paragraph (b) insert—

"(ba)without reasonable excuse, fail to produce any information or document specified in an examination notice; or".

42Application for production order—relevant offence

(1)In the heading to section 100 of the Confiscation Act 1997 omit "—relevant offence".

(2)In section 100(2) of the Confiscation Act 1997—

(a)for "a police officer" substitute "an investigative officer"; and

(b)for "the police officer" substitute "the investigative officer".

(3)For section 100(3)(b) of the Confiscation Act 1997 substitute—

"(b)stating that he or she believes 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 that relevant offence or relevant to the enforcement of any of the following orders made against the person against whom the order is sought—

(i)pecuniary penalty order; or

(ii)compensation order or restitution order under Part 4 of the Sentencing Act 1991; and".

43Production orders

After section 101(3) of the Confiscation Act 1997 insert—

"(3AA)In the case of an application under subsection 100(2), if the applicant's affidavit—

(a)states that the applicant believes that—

(i)property specified in the application—

(A)is subject to the effective control of that person; or

(B)was the subject of a gift from that person; and

(ii)the person against whom the order is sought has possession or control of one or more property-tracking documents relevant to any of the following—

(A)the enforcement of a pecuniary penalty order against the person;

(B)the enforcement of a compensation order or restitution order under Part 4 of the Sentencing Act 1991 against the person; and

(b)sets out the grounds on which the applicant holds those beliefs—

the court may if it considers that, having regard to the matters contained in that affidavit and to any other sworn or affirmed evidence before it, there are reasonable grounds for doing so, treat any document relevant to identifying, locating or quantifying that property as a property‑tracking document in relation to the matters specified in paragraph (a)(ii).".

44Issuing information notices—authorised police officer

After section 118D(2) of the Confiscation Act 1997 insert—

"(3)Despite subsection (2), an authorised police officer may issue an information notice to a financial institution if the police officer believes that—

(a)an account with the financial institution in respect of which the information is sought is secured by property; and

(b)the property is derived property or tainted property; and

(c)the issuing of the information notice is required to determine whether to take any action under this Act.

(4)An information notice issued under this section expires on the earlier of—

(a)the date on which the authorised police officer no longer reasonably believes the matters specified under subsection (2) or (3) on which the authorised police officer relied to justify the issue of the information notice; or

(b)3 months from the date of issue of the information notice.".

45What can an information notice require?

(1)In section 118G(1)(a) of the Confiscation Act 1997—

(a)in subparagraph (ii), for "account; or" substitute "account; and";

(b)after subparagraph (ii) insert—

"(iii)in the case of an account for a loan that is secured by property, the registered proprietors of the property, the amount secured by the property and the location of the property; or".

(2)In section 118G(1)(b)(ii) of the Confiscation Act 1997, for "account." substitute "account; and".

(3)After section 118G(1)(b)(ii) of the Confiscation Act 1997 insert—

"(iii)in the case of an account for a loan that is secured by property, the registered proprietors of the property, the amount secured by the property and the location of the property.".

46New Division 3B of Part 13 inserted

After Division 3A of Part 13 of the Confiscation Act 1997 insert—

"Division 3B—Credit information

118NAccess to and use of information held by credit reporting bodies

(1)On the written request of an investigative officer or a prescribed person, a credit reporting body is authorised to disclose to the person making the request the following information about a person for the purposes of a proceeding or taking an enforcement action under this Act against the person—

(a)any identification information included in the person's credit information;

(b)any telephone number or email address recorded in the name of the person;

(c)credit worthiness information in relation to the person;

(d)the name of any financial institution in respect of which the person is a customer and the details of any accounts held by the person with that financial institution.

(2)The Chief Commissioner of Police may authorise in writing a police officer of the rank of inspector or above to request credit information.

(3)A request for credit information may be issued in accordance with this section by an investigative officer.

(4)In this section—

credit worthiness has the same meaning as in the Privacy Act 1988 of the Commonwealth;

investigative officer means—

(a)a person authorised under section 118N(2); or

(b)a person who holds a prescribed office; or

(c)a person belonging to a prescribed class of investigative officer.".

Division 9—Restraining orders

47Purposes for which a restraining order may be made

In section 15(1) of the Confiscation Act 1997—

(a)in paragraph (d) omit "that may be made under Part 8";

(b)in paragraph (e) omit "that may be made".

48Property may be subject to both restraining order and other orders

After section 15A(2)(c) of the Confiscation Act 1997 insert—

"(ca)the restraining order ceasing to operate in whole or in relation to the property or interest in property under section 27A;".

49Determination of application

In section 18(1)(d)(ii) of the Confiscation Act 1997, for "$10 000" substitute "$20 000".

50Duration and setting aside of restraining order

After section 27(10) of the Confiscation Act 1997 insert—

"(11)An applicant for an order under subsection (9) setting aside a restraining order is not required to give notice of the application to any person who has an interest in the property.".

51New section 27A inserted

After section 27 of the Confiscation Act 1997 insert—

"27A   Property subject to multiple restraining orders

A restraining order ceases to be in force in respect of property or an interest in property if the property or interest in property—

(a)is subject to another restraining order; and

(b)is forfeited to the Minister by or under this Act to satisfy a purpose for which that other restraining order was made.".

52Registration of restraining order

In section 28(1) of the Confiscation Act 1997—

(a)after "restraining order," insert "a prescribed person or a person belonging to a prescribed class of persons,";

(b)after "on the register" insert "as far as practicable".

53New section 28A inserted

After section 28 of the Confiscation Act 1997 insert—

"28A   No mortgage, charge or encumbrance to be registered on land subject to restraining order

(1)The Registrar of Titles must not register or record a mortgage, charge or encumbrance on land under the Transfer of Land Act 1958 or the Property Law Act 1958 if a restraining order is registered on the land except—

(a)as otherwise permitted by or under this Act; or

(b)in accordance with an order of a court.

(2)A mortgage, charge or encumbrance on land that is registered, notified or saved in contravention of subsection (1) does not bind or affect the land.

Note

See also section 42.".

54State to pay restitution and compensation out of forfeited property etc.

(1)In section 31(1)(b) of the Confiscation Act 1997, for "the offence in reliance on which the restraining order is made" substitute "an offence".

(2)In section 31(1)(c) of the Confiscation Act 1997, after "that offence" (wherever occurring) insert "or a related offence".

Division 10—Miscellaneous

55Definitions

In section 3(1) of the Confiscation Act 1997, in the definition of law enforcement agency, in paragraph (ba), for "authority or person" substitute "prescribed authority, person or class of person".

56Meaning of absconds

For section 5(d) of the Confiscation Act 1997 substitute—

"(d)a court makes an order that the evidence is of sufficient weight to prove the offence beyond reasonable doubt.".

57Effective control of property

After section 9(1) of the Confiscation Act 1997 insert—

"(1A)Property may be subject to the effective control of more than one person.

(1B)Property that is held on trust for the benefit of a person, or is otherwise subject to a person's beneficial ownership, is taken to be under the person's effective control.".

58Protected property not to be included in serious drug offence restraining order

In section 24(3) of the Confiscation Act 1997, after "item"(where secondly occurring) insert ", at the time at which the serious drug offence restraining order is made,".

59Duration and setting aside of restraining order

In section 27(3A) of the Confiscation Act 1997, for "7 days" substitute "14 business days".

60Notice of freezing order

In section 31G(1)(b)(i), (2)(f) and (3) of the Confiscation Act 1997, for "3 business days" substitute "5 business days".

61When does a freezing order take effect?

In section 31H(2) of the Confiscation Act 1997—

(a)in paragraph (a), for "restraining order or a civil forfeiture restraining order" substitute "restraining order, civil forfeiture restraining order or unexplained wealth restraining order";

(b)in paragraph (b), for "3 business days" substitute "5 business days".

62Extension of freezing orders

(1)In section 31I(2) of the Confiscation Act 1997—

(a)in paragraph (b)(i), for "restraining order or a civil forfeiture restraining order" substitute "restraining order, civil forfeiture restraining order or unexplained wealth restraining order"; and

(b)in paragraph (b)(ii), for "restraining order or the civil forfeiture restraining order" substitute "restraining order, civil forfeiture restraining order or unexplained wealth restraining order".

(2)In section 31I(3)(b)(i) and (ii) of the Confiscation Act 1997, for "restraining order or a civil forfeiture restraining order" substitute "restraining order, civil forfeiture restraining order or unexplained wealth restraining order".

(3)In section 31I(5) of the Confiscation Act 1997, for "on the determination of an application for a restraining order or a civil forfeiture restraining order, a restraining order or a civil forfeiture restraining order, as the case requires, is not" substitute "on the determination of an application for a restraining order, civil forfeiture restraining order or unexplained wealth restraining order, that order as the case requires, is not".

(4)In section 31I(6) of the Confiscation Act 1997, for "restraining order or the civil forfeiture restraining order" substitute "restraining order, civil forfeiture restraining order or unexplained wealth restraining order".

(5)In section 31I(7)(a) and (b) of the Confiscation Act 1997, for "restraining order or a civil forfeiture restraining order" substitute "restraining order, civil forfeiture restraining order or unexplained wealth restraining order".

63Expiry of search and inspection warrant

In section 97H(2) of the Confiscation Act 1997, for "1 month" substitute "2 months".

64Expiry of search and seizure warrant

In section 97T(2)(a) of the Confiscation Act 1997, for "1 month" substitute "2 months".

65Issuing information notices—prescribed person

For section 118E(4) of the Confiscation Act 1997 substitute—

"(4)A person prescribed for the purposes of section 118C must not issue an information notice under subsection (3) unless he or she reasonably believes that the issuing of the information notice is required to manage or dispose of the specified property.".

66Information notices

(1)Section 118G(1A) of the Confiscation Act 1997 is repealed.

(2)In section 118H(2)(ba) of the Confiscation Act 1997, for "believed to be subject to a mortgage or other security interest in favour of the financial institution" substitute "referred to in section 118E(3)(a) or (b) (as the case may be)".

67Registration of interstate orders

For section 125(5) of the Confiscation Act 1997 substitute—

"(5)The Supreme Court may register a copy of an interstate order that is—

(a)sealed or certified electronically in accordance with the procedures of the court that made the order; and

(b)transmitted by electronic communication.".

68Service of documents

(1)After section 137(1)(a)(iii) of the Confiscation Act 1997 insert—

"(iv)if the person has given an electronic address as an address for receiving notices or other documents—by sending it by electronic communication to that electronic address; or

(v)in any other prescribed way; or".

(2)After section 137(1)(b)(iii) of the Confiscation Act 1997 insert—

"(iv)if the company has given an electronic address as an address for receiving notices or other documents—by sending it by electronic communication to that electronic address; or

(v)in any other prescribed way; or".

(3)In section 137(1)(c) of the Confiscation Act 1997, for "that Act." substitute "that Act; or".

(4)After section 137(1)(c) of the Confiscation Act 1997 insert—

"(d)if the person is a legal practitioner who has given written notice that the legal practitioner represents a person in any proceeding under this Act and is instructed to accept personal service of documents on behalf of the person, personal service of a document on the person may be effected by—

(i)giving a copy of the document to the legal practitioner; or

(ii)leaving a copy of the document at the ordinary place of business of the legal practitioner with a person who appears to work there; or

(iii)sending a copy of the document by registered post addressed to the legal practitioner at the ordinary business address of the legal practitioner; or

(iv)delivering a copy of the document by means of fax or email to the legal practitioner of the person who—

(A)has consented to receiving documents on the person's behalf by fax or email; and

(B)has provided a fax number or address or email address to the prosecution or informant in the matter in respect of which the legal practitioner is representing the person; or

(v)if the legal practitioner—

(A)has facilities for the reception of documents in a document exchange; and

(B)consents to accepting personal service of documents by delivery to those facilities in the document exchange—

by delivering a copy of the document addressed to the legal practitioner into those facilities.".

69Schedule 2 amended

(1)For paragraphs (ba), (bab), (bac), (bb), (bc) and (bd) of item 2 of Schedule 2 to the Confiscation Act 1997 substitute—

"(ba)section 53B(1) (using force, threat etc. to cause another person to provide commercial sexual services);

(bab)section 53C(1) (causing another person to provide commercial sexual services in circumstances involving sexual servitude);

(bac)section 53D(1) (conducting a business in circumstances involving sexual servitude);

(bb)section 53E(1) (aggravated sexual servitude);

(bc)section 53F(1) (deceptive recruiting for commercial sexual services);

(bd)section 53G(1) (aggravated deceptive recruiting for commercial sexual services).".

(2)For paragraphs (a), (b) and (c) of item 2A of Schedule 2 to the Confiscation Act 1997 substitute—

"(a)section 6(1) (receiving payment for sexual services provided by a child);

(b)section 7(1) (agreement for provision of sexual services by a child);".

(3)After item 13 of Schedule 2 to the Confiscation Act 1997 insert—

"14.An offence against section 7C(1) of the Firearms Act 1996.".

Division 11—Statute law revision and transitional provisions

70Relief from unexplained wealth forfeiture

In section 45B(1) of the Confiscation Act 1997, for "unrestrained" substitute "unexplained".

71New section 194 inserted

After section 193 of the Confiscation Act 1997 insert—

"194   Transitional provision—Major Crime and Community Safety Legislation Amendment Act 2022

(1)In this section—

amending Act means the Major Crime and Community Safety Legislation Amendment Act 2022.

(2)This Act, as amended by Division 1 of Part 2 of the amending Act, applies to an application for a freezing order that is made on or after the commencement of that Division irrespective of whether the offence to which the application relates is alleged to have been committed before, on or after that commencement.

(3)This Act, as amended by Division 3 of Part 2 of the amending Act, applies only to an application for an exclusion order that is made on or after the commencement of that Division irrespective of when the restraining order to which the application relates was made or the property to which the application relates was forfeited (as the case may be).

(4)This Act, as amended by sections 34 and 35 of the amending Act, applies with respect to an interest in land that becomes subject to a charge on land before, on or after the commencement of sections 34 and 35 of the amending Act.

(5)This Act, as amended by Division 8 of Part 2 (other than section 44) of the amending Act, applies only with respect to an application for an examination order or a production order that is made on or after the commencement of that Division irrespective of—

(a)whether the offence to which the application relates is alleged to have been committed before, on or after that commencement; or

(b)when the pecuniary penalty order, compensation or restitution order was made.

(6)Section 15, as amended by section 47 of the amending Act, applies to a restraining order that is made on or after the commencement of that section of the amending Act—

(a)to satisfy a pecuniary penalty order, irrespective of whether the pecuniary penalty order was made before or is made on or after that commencement; and

(b)to satisfy any order for restitution or compensation under the Sentencing Act 1991, irrespective of whether the order was made before or is made on or after that commencement.

(7)Section 31, as amended by section 54 of the amending Act, applies to a compensation order that is made on or after 16 October 2020.

(8)Section 33, as amended by section 22 of the amending Act, applies only with respect to an application that is made on or after the commencement of section 22 of the amending Act irrespective of whether the offence to which the application relates is alleged to have been committed before, on or after that commencement.

(9)Section 45A, as amended by section 23 of the amending Act, applies to an application that is made before, on or after the commencement of section 23 of the amending Act.

(10)Sections 15A(2)(ca), 27(11) and 27A, as inserted by Division 9 of Part 2 of the amending Act apply to a restraining order irrespective of when the order was made.

(11)Sections 28(1) and 28A, as amended by Division 9 of Part 2 of the amending Act, applies only to a restraining order that is made on or after the commencement of Division 9 irrespective of whether the offence to which the order relates is alleged to have been committed before, on or after that commencement.

(12)Section 24 as amended by section 58 of the amending Act applies to any restraining order in effect irrespective of when the order is made.

(13)Section 27 as amended by section 59 of the amending Act applies to any restraining order in effect irrespective of when the order is made.

(14)Section 31G as amended by section 60 of the amending Act applies only to a freezing order that is made on after the commencement of section 60.

(15)Section 97H, as amended by section 63 of the amending Act, applies only to a warrant issued on or after the commencement of section 63.

(16)Section 97T, as amended by section 64 of the amending Act, applies only to a warrant issued on or after the commencement of section 64.

(17)Sections 80A and 80B apply only with respect to a search warrant that is issued on or after the commencement of section 12 of the amending Act irrespective of when—

(a)the offence to which the warrant relates is suspected to have been committed; or

(b)the offence to which the tainted property relates is alleged to have been committed; or

(c)the property to which the warrant relates is forfeited.

(18)Section 88, as amended by section 13 of the amending Act, applies only with respect to a seizure warrant that was issued on or after the commencement of section 13 of the amending Act.

(19)Section 92A, as inserted by section 14 of the amending Act, applies only with respect to a search warrant that is issued on or after the commencement of section 14 of the amending Act irrespective of when the offence to which the warrant relates is suspected to have been committed.

(20)Section 118D, as amended by section 44 of the amending Act, applies only to notices issued on or after the commencement of section 44 of the amending Act.

(21)The amendments made to Schedule 2 by section 69 of the amending Act apply only with respect to an offence alleged to have been committed on or after the commencement of section 69 of the amending Act.

(22)For the purposes of subsection (21), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 69 of the amending Act, the offence is alleged to have been committed before that commencement.".

Part 3—Amendment of Crimes Act 1958

Division 1—Search warrants

72New section 464ZT inserted

Before section 465 of the Crimes Act 1958 insert—

"464ZT   Definitions

In this Subdivision—

evidentiary material means a thing that will afford evidence as to the commission of an offence for which a warrant has been issued under section 465;

warrant premises, in relation to a warrant, means a building, receptacle, place or vehicle that is subject to the warrant.".

73Issue of search warrant by magistrate

(1)In section 465(1) of the Crimes Act 1958, for "and carry it before the Magistrates' Court to be dealt with" substitute "and hold or retain it".

(2)After section 465(1) of the Crimes Act 1958 insert—

"(1A)Subject to this Subdivision, a warrant issued under subsection (1) authorises the police officer executing it to hold or retain a seized thing for as long as is reasonably required for the purposes of—

(a)the investigation of the offence in relation to which it was seized; or

(b)a criminal proceeding for the offence in relation to which it was seized.".

(3)After section 465(2) of the Crimes Act 1958 insert—

"(2A)Despite section 78(1)(b)(ii) of the Magistrates' Court Act 1989, a warrant issued under subsection (1) does not require an article, thing or material to be brought before the Magistrates' Court.".

(4)In section 465(3) of the Crimes Act 1958, after "any other Act" insert ", except as set out in subsection (2A)".

74New sections 465AAAA, 465AAAAB, 465AAAAC, 465AAAAD, 465AAAAE and 465AAAAF inserted

After section 465 of the Crimes Act 1958 insert—

"465AAAA   Powers relating to receptacles

(1)A police officer executing a warrant issued under section 465 in relation to warrant premises is authorised to break open or unlock any receptacle in or on the warrant premises as is reasonably necessary for conducting a search under the warrant.

(2)For the purposes of subsection (1), the police officer executing the warrant is authorised to take any action that is reasonably necessary—

(a)to determine whether the receptacle is, or contains, a thing that may be seized; or

(b)to determine whether the receptacle is, or contains, a thing that may pose a hazard to a person; or

(c)to assess or remove any thing in the receptacle that may pose a hazard to a person; or

(d)to deal with the receptacle or any thing in the receptacle to prevent any hazard or mitigate the risk of any hazard to a person.

(3)A police officer executing a warrant issued under section 465 in relation to warrant premises is authorised to move a receptacle to another place, for up to 7 business days, for examination to determine whether the receptacle is, or contains, a thing that may be seized under the warrant, if—

(a)it is significantly more practicable to do so having regard to the following—

(i)the timeliness;

(ii)the cost of examining the receptacle at another place;

(iii)the availability of expert assistance;

(iv)the safety of a person at the warrant premises during the execution of the warrant; and

(b)there are reasonable grounds to suspect the receptacle is, or contains, a thing that may be seized under the warrant.

(4)In this section—

business day means a day other than a Saturday or Sunday or a day appointed as a public holiday under the Public Holidays Act 1993.

465AAAABPolice may use assistants and equipment

(1)A police officer executing a warrant issued under section 465 in relation to warrant premises may do any of the following—

(a)seek the assistance of a person (an assistant) who possesses specialised skills or technical knowledge necessary for exercising a power authorised by the warrant and bring the assistant onto the warrant premises;

(b)bring onto the warrant premises any equipment, vehicle, animal or material that the police officer reasonably requires for exercising a power authorised by the warrant.

(2)The police officer may direct an assistant—

(a)to take stated action at the premises; and

(b)to exercise stated powers that the police officer is authorised by the warrant to exercise.

(3)For the purposes of subsection (2), the police officer—

(a)is only permitted to direct an assistant to take stated action or exercise stated powers that are consistent with the specialist skills or technical knowledge of the assistant; and

(b)cannot direct the assistant to arrest a person.

(4)The police officer must inform the assistant of—

(a)the action that the assistant is directed to take; and

(b)the assistant's powers under this section.

(5)The police officer may seek the assistance of as many assistants as are reasonably necessary to exercise the powers authorised by the warrant.

465AAAACPolice officer may arrange for expert to operate electronic equipment at premises being searched

(1)This section applies to a police officer executing a warrant issued under section 465 in relation to warrant premises who believes on reasonable grounds that—

(a)evidentiary material may be accessible by operating electronic equipment found at the warrant premises; and

(b)expert assistance is required to operate the equipment; and

(c)if the police officer does not take action under this section, the material may be destroyed, altered or otherwise interfered with.

(2)Subject to subsections (4), (5) and (6), the police officer may—

(a)do whatever is necessary to secure the electronic equipment at the warrant premises, including—

(i)locking the equipment in a secure room; and

(ii)guarding or placing a guard at the equipment; and

(b)arrange for an expert to attend and operate the equipment.

(3)The police officer must notify the occupier of the warrant premises of—

(a)the police officer's intention to secure the electronic equipment; and

(b)the periods that electronic equipment may be secured under subsections (5) and (6).

(4)In securing electronic equipment under subsection (2), a police officer must cause the least disruption and inconvenience to the occupier of the warrant premises as is reasonably practicable in the circumstances. 

(5)Subject to subsection (6), the electronic equipment may be secured for a period not exceeding 24 hours.

(6)If an expert attends within the period referred to in subsection (5), the electronic equipment may be secured for—

(a)an additional period ending when the expert finishes operating the equipment or 24 hours after the expert arrives (whichever occurs first); or

(b)if the Magistrates' Court extends the period under section 465AAAAE(1), the period as so extended.

465AAAADApplication for extension of time to allow expert to finish operating equipment

(1)This section applies if a police officer—

(a)secures electronic equipment under section 465AAAAC; and

(b)believes on reasonable grounds that an expert—

(i)will not arrive within 24 hours of the equipment being secured; or

(ii)will not finish operating the equipment within 24 hours after arriving.

(2)A police officer may apply to the Magistrates' Court for an extension of the period for which the electronic equipment may be secured under section 465AAAAC by not more than 7 days.

(3)The occupier of the warrant premises is entitled to be heard in relation to an application made under subsection (2).

(4)The police officer must notify the occupier of the warrant premises—

(a)that the police officer intends to apply for an extension of the period for which the electronic equipment is secured; and

(b)that the occupier is entitled to be heard in relation to the application.

465AAAAEDetermination of application for extension of time to allow expert to finish operating equipment

(1)On an application under section 465AAAAD, the Magistrates' Court may extend the period that the electronic equipment may be secured if the Magistrates' Court is satisfied that the extension is appropriate in the circumstances and the expert—

(a)will not arrive within 24 hours of the equipment being secured; or

(b)will not finish operating the equipment within 24 hours after arriving.

(2)In determining whether the extension is appropriate in the circumstances, the Magistrates' Court may have regard to the following—

(a)the length of time that is likely required for an expert to attend the warrant premises and operate the equipment;

(b)the inconvenience that securing the equipment may cause to a person;

(c)the likelihood that operating the electronic equipment will enable evidentiary material to be accessed, copied or converted into documentary form in accordance with section 465AAAAF;

(d)any other matters the Magistrates' Court considers relevant.

(3)The Magistrates' Court may direct that a police officer must not take a specified action in relation to the secured electronic equipment during the extended period if it appears to the Magistrates' Court that—

(a)the taking of that action would cause unreasonable disruption and inconvenience to an occupier of the warrant premises; and

(b)it is appropriate in the circumstances to limit the exercise of the police officer's powers under the warrant.

(4)A period extended under subsection (1) ends at the earlier of either—

(a)the end of the further period specified by the Magistrates' Court in the extension; or

(b)the time at which the expert finishes operating the equipment.

(5)The further period specified by the Magistrates' Court must not exceed 7 days.

(6)The Magistrates' Court may extend a period under subsection (1) in relation to particular equipment more than once.

465AAAAFWarrant authorises a police officer to access data held in or accessible from a computer or data storage device

A warrant issued under section 465 in relation to warrant premises authorises a police officer executing the warrant to do one or more of the following things—

(a)access data held in, or accessible from, a computer or data storage device that—

(i)is on warrant premises; or

(ii)has been seized under the warrant and is at a place other than warrant premises;

(b)copy to another data storage device data held in, or accessible from, a computer or data storage device described in paragraph (a);

(c)convert into documentary form—

(i)data held in, or accessible from, a computer or data storage device described in paragraph (a); or

(ii)data held in a data storage device to which the data was copied as described in paragraph (b).".

75Warrants may authorise the giving of a direction requiring assistance from person with knowledge of a computer or computer network

In section 465AAA(1) of the Crimes Act 1958, for "a building, receptacle, place or vehicle (warrant premises)" substitute "warrant premises".

76Power to require assistance from person with knowledge of a computer or computer network

In section 465AA(1) of the Crimes Act 1958, for "a building, receptacle, place or vehicle (warrant premises)" substitute "warrant premises".

77New sections 465AAB, 465AAC, 465AAD and 465AAE inserted

After section 465AA of the Crimes Act 1958 insert—

"465AAB   Informing a person about a report relating to the execution of a warrant

A police officer executing a warrant issued under section 465 in relation to warrant premises must inform the occupier of the warrant premises (if any) of—

(a)the requirement for a report about the execution of the warrant to be made in accordance with section 465AAC; and

(b)the venue of the Magistrates' Court at which the report will be lodged; and

(c)the time period in which the report will be lodged; and

(d)the persons who may be authorised by the Magistrates' Court to inspect the report under section 465AAE.

465AACReport to the Magistrates' Court after executing search warrant

(1)A police officer who is issued a warrant under section 465 in relation to warrant premises must make and sign a report on the execution or non-execution of the warrant.

(2)The police officer must cause the report under subsection (1) to be lodged—

(a)with a registrar at the venue of the Magistrates' Court that is nearest to the warrant premises; and

(b)no later than 10 days after the execution or expiry of the warrant, whichever is earlier.

(3)A report under subsection (1) made in relation to a warrant that was executed must—

(a)contain particulars of—

(i)the name of the police officer in charge of the execution of the warrant; and

(ii)if the police officer who executed the warrant sought the assistance of a person under section 465AAAAB—

(A)the person's name; and

(B)the person's expertise or qualifications; and

(iii)the date on which the warrant was executed; and

(iv)the powers that were executed under the warrant; and

(v)if electronic equipment was secured and operated by an expert under section 465AAAAC—

(A)the electronic equipment secured and operated; and

(B)the name of the expert who operated the electronic equipment; and

(vi)if an application to extend the time for electronic equipment to be secured is made under section 465AAAAD, the outcome of that application; and

(vii)the result of the execution of the warrant, including—

(A)the name of any persons arrested; and

(B)a description of any thing seized; and

(C)a description of any searches undertaken; and

(D)a description of any thing that was broken open, unlocked, destroyed or disposed or moved to another place under section 465AAAA(3) during the execution of the warrant; and

(b)be in the prescribed form (if any).

(4)A report under subsection (1) made in relation to a warrant that was not executed must contain reasons why the warrant was not executed.

465AADThe Magistrates' Court may summon a police officer to give evidence about a report

(1)After a report about a warrant is filed or lodged at a venue of the Magistrates' Court under section 465AAC(2), the Magistrates' Court may issue a summons to the police officer who signed the report to give evidence on the matters contained in the report.

(2)The summons must include the venue of the Magistrates' Court and the date and time at which the police officer is to appear before the Magistrates' Court to give evidence.

(3)The Magistrates' Court may direct that any thing seized under a warrant, to which the report relates, is to be returned to its owner, subject to any condition that the Magistrates' Court thinks fit, if in the opinion of the Magistrates' Court it can be returned consistently with the interests of justice.

465AAEApplication to inspect a report

(1)A person may apply to the Magistrates' Court at the venue where the report was filed or lodged under section 465AAC(2) for an order authorising the person to inspect the report.

(2)The Magistrates' Court may, on an application made under subsection (1), make an order authorising the person to inspect the report or a part of the report that is relevant to the person, if satisfied that the person is—

(a)a person who was arrested during the execution of the warrant; or

(b)the owner or occupier of the building, receptacle, place or vehicle that was subject to the execution of the warrant; or

(c)the owner of property that was seized during the execution of the warrant; or

(d)the owner of property that was broken open, unlocked, destroyed or disposed of during the execution of the warrant; or

(e)a person who has an interest in a thing that was seized, broken open, unlocked, destroyed or disposed of during the execution of the warrant; or

(f)if electronic equipment was secured for operation by an expert under section 465AAAAC, a person who has an interest in the equipment.".

78Application for tainted property to be held or retained

(1)In the heading to section 465B of the Crimes Act 1958 omit "—return of warrant to court".

(2)For section 465B(1) of the Crimes Act 1958 substitute—

"(1)After a police officer has executed the warrant issued under section 465 and seized a thing under the warrant, the police officer named in the warrant or another police officer may apply to the Magistrates' Court at a venue of the Magistrates' Court that is nearest to the warrant premises for a direction that the thing so seized be held or retained as if it were tainted property seized under a warrant under section 79 of the Confiscation Act 1997.".

79New section 465F inserted

After section 465E of the Crimes Act 1958 insert—

"465F   Display of seized things

(1)The Chief Commissioner of Police may display a thing seized under a warrant issued under section 465 to the public in any manner, including the following—

(a)by displaying the thing at a conference attended by one or more media organisations;

(b)by publishing a photo or video of the thing.

(2)This section applies despite anything to the contrary in Subdivision 5 of Division 3 of Part 4 of the Magistrates' Court Act 1989.

(3)In this section—

journalism means the practice of collecting, preparing for dissemination or disseminating any of the following material for the purpose of making it available to the public—

(a)material having the character of news or current affairs;

(b)material consisting of commentary or opinion on or analysis of news or current affairs;

media organisation means a person or body that engages in journalism;

publish means disseminate or provide access to the public or a section of the public by—

(a)publication in a newspaper; or

(b)broadcast by television; or

(c)electronic communication (including social media).".

Division 2—Fingerprinting

80Fingerprinting of adults and children aged 15 or above

(1)In section 464K(2)(e) of the Crimes Act 1958, for "destroyed." substitute "destroyed; and".

(2)After section 464K(2)(e) of the Crimes Act 1958 insert—

"(f)that if the person is or has been fingerprinted under this Subdivision on another occasion, section 464O(3A) may apply to the collective destruction of the person's fingerprints; and

(g)that the fingerprints may not be destroyed if the person dies before the fingerprints are required to be destroyed; and

(h)that the fingerprints may be used for the purposes specified in section 464NB.".

81Fingerprinting of children aged 14 or under

(1)In section 464L(3)(d) of the Crimes Act 1958, for "child's parent or guardian" substitute "child, or the child's parent or guardian,".

(2)In section 464L(3)(f) of the Crimes Act 1958, for "destroyed." substitute "destroyed; and".

(3)After section 464L(3)(f) of the Crimes Act 1958 insert—

"(g)that if the child is or has been fingerprinted under this Subdivision on another occasion, section 464O(3A) may apply to the collective destruction of the child's fingerprints; and

(h)that the fingerprints may not be destroyed if the child dies before the fingerprints are required to be destroyed; and

(i)that the fingerprints may be used for the purposes specified in section 464NB.".

82New section 464NB inserted

After section 464NA of the Crimes Act 1958 insert—

"464NB   Other purposes for the use or disclosure of fingerprint information

(1)Fingerprints taken in accordance with this Subdivision and any record, copy or photograph of them may be used by a person authorised in writing by the Chief Commissioner of Police for any of the following purposes—

(a)to identify a deceased person;

(b)to identify a person who has suffered a serious injury;

(c)to identify a deceased person in a coronial inquest or investigation.

(2)The Chief Commissioner of Police may disclose the identity of a person who is identified through the use of fingerprints under subsection (1) to a coroner.

(3)The Chief Commissioner of Police may disclose the identity of a person who is identified through the use of fingerprints for the purposes of subsection (1)(b) to a medical practitioner.".

83Destruction of records

(1)In section 464O(2) of the Crimes Act 1958, for "subsection (4)" substitute "subsections (4) and (5A)".

(2)In section 464O(3)(a) of the Crimes Act 1958, for "immediately after that period of 6 months" substitute "within 1 month after the period referred to in subsection (2)(a)".

(3)After section 464O(3) of the Crimes Act 1958 insert—

"(3A)Despite subsection (3), if a person has been fingerprinted in accordance with this Subdivision on more than one occasion, those fingerprints and each record, copy or photograph of the fingerprints must be collectively destroyed within 1 month of the date on which the person satisfies the criteria under subsection (2) in relation to all of those fingerprints.".

(4)After section 464O(5) of the Crimes Act 1958 insert—

"(5A)The Chief Commissioner of Police is not required to destroy or cause to be destroyed a person's fingerprints taken in accordance with this Subdivision or any record, copy or photograph of the fingerprints if—

(a)the person has had their fingerprints taken in accordance with this Subdivision on another occasion and those other fingerprints are not required to be destroyed under this section; or

(b)the person to whom the fingerprints belong has died.".

Division 3—Transitional provision

84Transitional provision

After section 637 of the Crimes Act 1958 insert—

"637A   Transitional provision—Major Crime and Community Safety Legislation Amendment Act 2022

(1)In this section—

amending Act means the Major Crime and Community Safety Legislation Amendment Act 2022.

(2)The amendments made to this Act by Division 1 of Part 3 of the amending Act only apply to warrants issued under section 465 on or after the commencement of Division 1 of Part 3 of the amending Act.

(3)The amendments made to this Act by Division 2 of Part 3 of the amending Act only apply to fingerprints taken on or after the commencement of Division 2 of Part 3 of the amending Act.".

Part 4—Amendment of Crimes (Assumed Identities) Act 2004

Division 1—Assumed identity

85Application for authority to acquire or use assumed identity

In section 4(3)(b) of the Crimes (Assumed Identities) Act 2004—

(a)after subparagraph (ii) insert—

"(iia)if the person referred to in subparagraph (ii) is a Victoria Police employee—the rank of the proposed supervisor of the person and an explanation of why it is necessary for the person to acquire or use the assumed identity; and";

(b)in subparagraph (iii), for "is not a law enforcement officer" (where first occurring) substitute "is an authorised civilian (other than a Victoria Police employee)".

86Determination of applications

In section 5(2)(c) of the Crimes (Assumed Identities) Act 2004, after "is not a law enforcement officer" insert "(other than a Victoria Police employee)".

87Form of authority

In section 6(2) of the Crimes (Assumed Identities) Act 2004—

(a)after paragraph (g) insert—

"(ga)if the authority relates to a Victoria Police employee—

(i)the name of the Victoria Police employee; and

(ii)the rank of the Victoria Police employee's supervisor; and

(iii)the period for which the authority will remain in force, being a period not exceeding 12 months; and";

(b)in paragraph (h)—

(i)in subparagraph (i), after "authorised civilian" insert "(other than a Victoria Police employee)";

(ii)in subparagraph (ii), for "his or her" substitute "their".

88Delegation of chief officer's functions

(1)For section 34(3) of the Crimes (Assumed Identities) Act 2004 substitute—

"(3)A law enforcement agency may not have in force under this section more than the following number of delegations at any one time—

(a)for Victoria Police—10 delegations;

(b)for any other law enforcement agency—4 delegations.".

(2)In section 34(5) of the Crimes (Assumed Identities) Act 2004, in the definition of senior officer, in paragraph (a), for "superintendent" substitute "inspector".

Division 2—Transitional provision

89Transitional provision

After section 37 of the Crimes (Assumed Identities) Act 2004 insert—

"38   Transitional provision—Major Crime and Community Safety Legislation Amendment Act 2022

Section 6(2), as amended by section 87 of the Major Crime and Community Safety Legislation Amendment Act 2022, applies to an authority granted on or after the commencement of section 87 of that Act.".

Part 5—Amendment of Drugs, Poisons and Controlled Substances Act 1981

90Part 3 of Schedule Eleven amended

In Part 3 of Schedule Eleven to the Drugs, Poisons and Controlled Substances Act 1981, in the item relating to "1,4-BUTANEDIOL", in Column 2B, for "-" substitute "600·0 g".

Part 6—Amendment of Sex Work Decriminalisation Act 2022

91Schedule 2 amended

In section 65(1) of the Sex Work Decriminalisation Act 2022 for proposed items 2(be), (bf) and (bg) of Schedule 2 to the Confiscation Act 1997 substitute—

"(be)section 53I(1) (obtaining a commercial benefit, payment or reward for commercial sexual services provided by a child);

(bf)section 53J(1) (agreement for provision of commercial sexual services by a child);".

Part 7—Repeal of this Act

92Repeal of this Act

This Act is repealed on 1 August 2024.

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: 4 August 2022

Legislative Council: 1 September 2022

The long title for the Bill for this Act was "A Bill for an Act to amend the Confiscation Act 1997, the Crimes Act 1958, the Crimes (Assumed Identities) Act 2004, the Drugs, Poisons and Controlled Substances Act 1981 and the Sex Work Decriminalisation Act 2022 and for other purposes."