Untitled document

Confiscation Amendment Regulations 2012

S.R. No. 20/2012

table of provisions

Regulation  Page

1Objectives

2Authorising provision

3Commencement

4Principal Regulations

5Objectives amended

6Regulation 6 heading amended

7New regulation 9A inserted

9ANotice requiring declaration of property interests—
civil forfeiture  restraining order

8Law enforcement agency

9Application for restraining order

10Further orders—restraining order

11New regulations 33A to 33C inserted

33AApplication for civil forfeiture restraining order

33BFurther orders—civil forfeiture restraining order

33CParticulars of civil forfeiture restraining order to be recorded on register

12Application for civil forfeiture

13Effect of forfeiture

14Power to discharge mortgage or charge

15Disposal of forfeited property

16Application to Minister for return of property

17Buying back interest in forfeited property

18Buying out other interests in forfeited property

19Revocation of regulation 41 of the Principal Regulations

20Assessment of benefits in relation to civil forfeiture offences

21Declaration that property available to satisfy pecuniary
penalty order

22Particulars of declaration under section 70(1) to be recorded
on register

23Disposal of property obtained to satisfy pecuniary penalty
order

24Trustees

25Disposal of livestock or perishable property

26Return of property seized under a warrant

27Application for search and inspection warrant

28Application for search and seizure warrant

29Order for examination

30Monitoring order

31Information notice

32New regulation 54A inserted

54ADocument request

33Registration of interstate orders

34New regulation 55A inserted

55AReports to the Minister

35Appeals

36Delegation

37Schedule 1 substituted

SCHEDULE 1—Notice Requiring Declaration of
Property Interests—Restraining Order

38Schedule 2 amended

39Schedule 3 amended

40Schedule 4 amended

41New Schedule 4A inserted

SCHEDULE 4A—Notice Requiring Declaration of
Property Interests—Civil Forfeiture Restraining Order

42Schedule 18 amended

43Schedule 19 substituted

SCHEDULE 19—Document Request

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ENDNOTES

statutory rules 2012

S.R. No. 20/2012

Confiscation Act 1997

Confiscation Amendment Regulations 2012

The Governor in Council makes the following Regulations:

Dated: 20 March 2012

Responsible Minister:

ROBERT CLARK
Attorney-General

Matthew mcbeath

Clerk of the Executive Council

1Objectives

The objectives of these Regulations are to amend the Confiscation Regulations 2008—

(a)as a consequence of changes to powers and procedures under the Confiscation Act 1997; and

(b)to reflect a structural change in the Department of Justice; and

(c)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 April 2012.

4Principal Regulations

In these Regulations, the Confiscation Regulations 2008[1] are called the Principal Regulations.

5Objectives amended

In regulation 1(c) of the Principal Regulations after "restraining order" insert "and a civil forfeiture restraining order".

6Regulation 6 heading amended

In the heading to regulation 6 of the Principal Regulations, after "interests" insert

"—restraining order".

7New regulation 9A inserted

After regulation 9 of the Principal Regulations insert—

9ANotice requiring declaration of property interests—civil forfeiture restraining order"

The prescribed form of a notice requiring a declaration of property interests under section 36O of the Act is the form set out in Schedule 4A.".

8Law enforcement agency

For regulation 30(1)(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

9Application for restraining order

For regulation 31(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

10Further orders—restraining order

For regulation 32(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

11New regulations 33A to 33C inserted

After regulation 33 of the Principal Regulations insert—

33AApplication for civil forfeiture restraining order"

For the purposes of section 36K(1) of the Act, the following persons are prescribed—

(a)the Director, Infringement Management and Enforcement Services;

(b)the Director, Enforcement Services, Infringement Management and Enforcement Services;

(c)the Assistant Director, Asset Confiscation Operations, Infringement Management and Enforcement Services.

33BFurther orders—civil forfeiture restraining order

For the purposes of section 36W(3)(d) of the Act, the following persons are prescribed—

(a)the Director, Infringement Management and Enforcement Services;

(b)the Director, Enforcement Services, Infringement Management and Enforcement Services;

(c)the Assistant Director, Asset Confiscation Operations, Infringement Management and Enforcement Services.

33CParticulars of civil forfeiture restraining order to be recorded on register

The prescribed particulars to be recorded under section 36Y(1) of the Act are—

(a)the name of the applicant;

(b)the name of the court by which the order was made;

(c)the date of the order;

(d)a description of the affected property that is sufficient to identify it.".

12Application for civil forfeiture

For regulation 34(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

13Effect of forfeiture

For regulation 35(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

14Power to discharge mortgage or charge

For regulation 36(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

15Disposal of forfeited property

For regulation 37(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

16Application to Minister for return of property

For regulation 38(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

17Buying back interest in forfeited property

For regulation 39(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

18Buying out other interests in forfeited property

For regulation 40(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

19Revocation of regulation 41 of the Principal Regulations

Regulation 41 of the Principal Regulations is revoked.

20Assessment of benefits in relation to civil forfeiture offences

(1)In the heading to regulation 42 of the Principal Regulations, for "civil forfeiture offences" substitute "Schedule 2 offences".

(2)For regulation 42(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

21Declaration that property available to satisfy pecuniary penalty order

For regulation 43(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

22Particulars of declaration under section 70(1) to be recorded on register

In regulation 44(e) of the Principal Regulations, for "defendant" substitute "accused".

23Disposal of property obtained to satisfy pecuniary penalty order

For regulation 45(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

24Trustees

For regulation 46(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

25Disposal of livestock or perishable property

For regulation 48(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

26Return of property seized under a warrant

For regulation 49(1)(a), (2)(a) and (3)(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

27Application for search and inspection warrant

For regulation 50(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

28Application for search and seizure warrant

For regulation 51(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

29Order for examination

For regulation 52(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

30Monitoring order

For regulation 53(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

31Information notice

For regulation 54(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

32New regulation 54A inserted

After regulation 54 of the Principal Regulations insert—

54ADocument request"

For the purposes of section 120A(2) of the Act, the following persons are prescribed—

(a)the Director, Infringement Management and Enforcement Services;

(b)the Director, Enforcement Services, Infringement Management and Enforcement Services;

(c)the Assistant Director, Asset Confiscation Operations, Infringement Management and Enforcement Services.".

33Registration of interstate orders

For regulation 55(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

34New regulation 55A inserted

After regulation 55 of the Principal Regulations insert—

55AReports to the Minister"

For the purposes of section 139A(2) of the Act, Infringement Management and Enforcement Services is prescribed as a law enforcement agency.".

35Appeals

For regulation 56(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

36Delegation

For regulation 57(a) of the Principal Regulations substitute—

"(a)the Director, Infringement Management and Enforcement Services;

(ab)the Director, Enforcement Services, Infringement Management and Enforcement Services;".

37Schedule 1 substituted

For Schedule 1 to the Principal Regulations substitute—

"SCHEDULE 1

Regulation 6

Notice Requiring Declaration of Property Interests—Restraining Order

Section 19A

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 and address)

WHY YOU HAVE RECEIVED THIS NOTICE

A court has made a restraining order in respect of certain property under the Confiscation Act 1997.  A copy of the restraining order should be attached to this notice.  The restraining order describes the property that has been restrained.

You have received this notice because the person who applied for the restraining order believes that you have an interest in some or all of the property described in the restraining order.

WHAT YOU MUST DO

You must make a declaration in writing.  You may use the attached form to make your declaration.

The declaration must state—

·whether or not you have an interest in the property described in the restraining order; and

·whether or not you believe that any other person has an interest in the property described in the restraining order.

An interest in property is defined in section 3(1) of the Confiscation Act 1997 as meaning a legal or equitable estate or interest in the property, or a right, power or privilege over, or in connection with, the property.

If you have an interest in the property, you must also state in the declaration the nature and extent of that interest, including—

·in relation to a mortgage, the current value of the debt secured by the mortgage; and

·in relation to any security interest other than a mortgage, the current value of the debt secured by the interest in the property.

The nature of an interest in land, for example, may be an interest in fee simple, a leasehold interest or a security interest such as a mortgage.  The extent of an interest, for example, may be the whole of the property or some lesser specified interest, such as a half-interest as a tenant in common.

If you believe that any other person has an interest in the property described in the restraining order, you must state to the best of your knowledge the name and address of every such person in the declaration.

You must give the declaration to a member of the police force within 14 days after you were given this notice.

Address for delivery of declaration:

WARNING

If you fail, without reasonable excuse, to make a declaration and give the declaration to a member of the police force within 14 days, you may be charged with a criminal offence and prosecuted under section 19C(1) of the Confiscation Act 1997.

If you make a false or misleading statement in your declaration, you may be charged and prosecuted under section 19C(2) of the Confiscation Act 1997.

If you are found guilty of either of these offences, you may be liable to a maximum penalty of 60 penalty units.

A statement made by you in a declaration of property interests, and any information, document or thing obtained as a consequence of such a statement, is admissible against you in a proceeding for making a false or misleading statement in the declaration or in any proceeding under the Confiscation Act 1997, but is not otherwise admissible in evidence against you.

ATTACHED FORM OF DECLARATION OF PROPERTY INTERESTS

I (insert full name)

of (address)

declare that—

   o    I have an interest as stated below in property described in the restraining order which I have been given; or

   o    I do not have an interest in property described in the restraining order which I have been given;

and

   o    I believe that another person as stated below has an interest in the property described in the restraining order which I have been given; or

   o    I do not believe that any other person has an interest in the property described in the restraining order which I have been given.

Nature and extent of my interest in the restrained property—

(insert statement of nature and extent of interest)

To the best of my knowledge the name and address of person(s) with an interest in restrained property are—

(insert name(s) and address(es))

Signature  Signature of witness*

Date  *Declaration may be witnessed by any adult.

__________________".

38Schedule 2 amended

In Schedule 2 to the Principal Regulations, for "72 hours" (where twice occurring) substitute "3 business days".

39Schedule 3 amended

In Schedule 3 to the Principal Regulations, for "72 hours" substitute "3 business days".

40Schedule 4 amended

In Schedule 4 to the Principal Regulations, for "72 hours" substitute "3 business days".

41New Schedule 4A inserted

After Schedule 4 to the Principal Regulations insert—

"SCHEDULE 4A

Regulation 9A

Notice Requiring Declaration of Property Interests—Civil Forfeiture Restraining Order

Section 36O

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 and address)

WHY YOU HAVE RECEIVED THIS NOTICE

A court has made a civil forfeiture restraining order in respect of certain property under the Confiscation Act 1997.  A copy of the civil forfeiture restraining order should be attached to this notice.  The civil forfeiture restraining order describes the property that has been restrained.

You have received this notice because the person who applied for the civil forfeiture restraining order believes that you have an interest in some or all of the property described in the civil forfeiture restraining order.

WHAT YOU MUST DO

You must make a declaration in writing.  You may use the attached form to make your declaration.

The declaration must state—

·whether or not you have an interest in the property described in the civil forfeiture restraining order; and

·whether or not you believe that any other person has an interest in the property described in the civil forfeiture restraining order.

An interest in property is defined in section 3(1) of the Confiscation Act 1997 as meaning a legal or equitable estate or interest in the property, or a right, power or privilege over, or in connection with, the property.

If you have an interest in the property, you must also state in the declaration the nature and extent of that interest, including—

·    in relation to a mortgage, the current value of the debt secured by the mortgage; and

·    in relation to any security interest other than a mortgage, the current value of the debt secured by the interest in the property.

The nature of an interest in land, for example, may be an interest in fee simple, a leasehold interest or a security interest such as a mortgage.  The extent of an interest, for example, may be the whole of the property or some lesser specified interest, such as a half-interest as a tenant in common.

If you believe that any other person has an interest in the property described in the civil forfeiture restraining order, you must state to the best of your knowledge the name and address of every such person in the declaration.

You must give the declaration to a member of the police force within 14 days after you were given this notice.

Address for delivery of declaration:

WARNING

If you fail, without reasonable excuse, to make a declaration and give the declaration to a member of the police force within 14 days, you may be charged with a criminal offence and prosecuted under section 36R(1) of the Confiscation Act 1997.

If you make a false or misleading statement in your declaration, you may be charged and prosecuted under section 36R(3) of the Confiscation Act 1997.

If you are found guilty of either of these offences, you may be liable to a maximum penalty of 60 penalty units.

A statement made by you in a declaration of property interests, and any information, document or thing obtained as a consequence of such a statement, is admissible against you in a proceeding for making a false or misleading statement in the declaration or in any proceeding under the Confiscation Act 1997, but is not otherwise admissible in evidence against you.

ATTACHED FORM OF DECLARATION OF PROPERTY INTERESTS

I (insert full name)

of (address)

declare that—

   o    I have an interest as stated below in property described in the civil forfeiture restraining order which I have been given; or

   o    I do not have an interest in property described in the civil forfeiture restraining order which I have been given;

and

   o    I believe that another person as stated below has an interest in the property described in the civil forfeiture restraining order which I have been given; or

   o    I do not believe that any other person has an interest in the property described in the civil forfeiture restraining order which I have been given.

Nature and extent of my interest in the restrained property—

(insert statement of nature and extent of interest)

To the best of my knowledge the name and address of person(s) with an interest in the restrained property are—

(insert name(s) and address(es))

Signature  Signature of witness*

Date  *Declaration may be witnessed by any adult.

__________________".

42Schedule 18 amended

(1)In Schedule 18 to the Principal Regulations, for—

"o       whether an account is held in the name(s) specified below, and if so, the number and balance of that account

othe name(s) in which the account specified below is held and the balance of the account"

substitute—

"o       whether an account is held in the name(s) specified below, and if so, the number and balance of that account and the account type

othe name(s) in which the account specified below is held, the balance of the account and the account type".

(2)In Schedule 18 to the Principal Regulations, after—

"Name/number of account

"

insert—

"Property details

".

(3)In Schedule 18 to the Principal Regulations, for—

"*Delete whichever is inapplicable."

substitute—

"*Delete words which are inapplicable.".

43Schedule 19 substituted

For Schedule 19 to the Principal Regulations substitute—

"SCHEDULE 19

Regulation 24

Document Request

Section 120B

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: (Name and address)

This document request is given to you under—

*section 120A(1) of the Confiscation Act 1997 by the Secretary to the Department of Justice, Victoria.

*section 120A(2) of the Confiscation Act 1997 by—

Name

Address

being a prescribed person for the purposes of that section.

You have received this document request because the *Secretary/*prescribed person named above believes that you have possession or control of documents relating to the maintenance and management of the property described below.

*The Secretary has responsibility for this property under a memorandum of understanding entered into under section 78A of the Confiscation Act 1997.

Description of property

WHAT YOU MUST DO

You are requested to produce the documents or types of documents specified below to the person who has given you this document request.

Documents requested

The documents are sought for the maintenance and management of the property by or on behalf of the *Secretary/*prescribed person.  The documents will be provided to such *delegates or agents of the Secretary/*agents of the prescribed person as required for the purposes of the maintenance and management of the property.

You are required to comply with this request within 14 days after the day on which the document request is given to you.

Address for delivery of documents:

A document that you produce to the person who has given you this document request must be returned to you within 7 days after you produce it.  If the person who has given you this document request believes on reasonable grounds that it is necessary for the purposes of the Confiscation Act 1997 to retain the document for more than 7 days, that person must give you a copy of the document certified in writing to be a true copy of the document (section 120E of the Confiscation Act 1997).

*Delete words which are not applicable

WARNING

It is an offence for a person who is given a document request to fail, without reasonable excuse, to comply with the request within 14 days after the day on which the request is given (section 120C(1) of the Confiscation Act 1997).

It is also an offence for a person who is given a document request to provide any document that is false or misleading in a material particular (section 120C(2) of the Confiscation Act 1997).

The maximum penalty for these offences is a fine of 60 penalty units.".

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ENDNOTES

[1] Reg. 4: S.R. No. 57/2008.