Untitled document
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
table of provisions
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Confiscation
Division 1—Amendments relating to civil forfeiture
3Definitions
4Property may be subject to both civil forfeiture restraining order and restraining order
5Application for civil forfeiture restraining order
6Determination of application for civil forfeiture restraining order
7Court directions to provide information
8Application for exclusion from civil forfeiture restraining order
9Determination of application for exclusion from civil forfeiture restraining order
10Priority given to payment of restitution or compensation
11Application for civil forfeiture order
12Application for exclusion from civil forfeiture order
13Determination of application for exclusion from civil forfeiture order
Division 2—Amendments relating to hardship
14Determination of application for forfeiture order
15Determination of application for civil forfeiture order
16Relief from hardship
Division 3—Amendments relating to serious drug offender regime
Subdivision 1—Amendment of Confiscation Act 1997
17Definitions
18Purposes for which a restraining order may be made
19New section 15A inserted
15AProperty may be subject to both restraining order and civil forfeiture restraining order
20Application for restraining order
21Procedure on application
22Determination of application
23Court directions to provide information
24Application for exclusion from restraining order
25New section 22A inserted
22ADetermination of exclusion application—serious drug offence restraining order
26New section 24 inserted
24Protected property not to be included in serious drug offence restraining order
27Duration and setting aside of restraining order
28Application for freezing order
29New Division 4 of Part 3 inserted
Division 4—Automatic forfeiture of property of serious drug ffender
36GAAutomatic forfeiture of restrained property on declaration that person is serious drug offender
36GBDeclaration that property has been forfeited
30Property may be subject to both civil forfeiture restraining order and restraining order
31Effect of forfeiture
32Disposal of forfeited property
33New section 45A inserted
45ARelief from automatic forfeiture of property of serious drug offender
34Discharge of automatic forfeiture in respect of an interest
35New sections 53 and 54 inserted
53Application for exclusion from automatic forfeiture of property of serious drug offender
54Determination of application from exclusion from automatic forfeiture of property of serious drug
offender
36Application to the Minister for return of property or payment of value
37Liability under forfeiture or pecuniary penalty order to be satisfied by trustee
38Order for examination
39Application for production order
40Application for search warrant for property-tracking documents
41Application for monitoring order
42Issuing information notices—authorised member of police force
43Interstate orders and search warrants
44Crime Prevention and Victims' Aid Fund
45Conversion costs
46Appeals
47New section 188 inserted
188Transitional—Criminal Organisations Control and Other Acts Amendment Act 2014
Subdivision 2—Amendment of Sentencing Act 1991
48Sentencing guidelines
49New Division 5 of Part 4 inserted
Division 5—Serious drug offender
89DIDeclaration by court that person is serious drug
offender
Subdivision 3—Amendment of Drugs, Poisons and Controlled Substances Act 1981
50Trafficking in a drug or drugs of dependence—large commercial quantity
51Cultivation of narcotic plants—large commercial quantity
52Conspiring
53Aiding and abetting etc.
Division 4—Amendments relating to management of restrained property
54Restraining orders
55Further orders
56Civil forfeiture restraining orders
57Further orders
58Liability under forfeiture or pecuniary penalty order to be satisfied by trustee
59Provisions concerning trustee
Part 3—Criminal Organisations Control
Division 1—Amendment of Criminal Organisations Control
Act 2012
60Definitions
61Section 4 repealed
62Meaning of prospective member
63Form and content of application
64Objection to application for declaration
65Court may make declarations
66New section 21 substituted
21Objections to be disregarded if respondent consents to declaration
67Form of declaration
68Duration of declaration
69Application for revocation of declaration
70Section 29 substituted
29Determination of application for revocation of declaration in respect of organisation
71New section 29A inserted
29ADetermination of application for revocation of declaration in respect of individual
72When revocation of declaration takes effect
73Court may make control order
74Content of control orders—declared organisations
75Winding up of incorporated associations that are prohibited from operating under a control order
76New section 51A inserted
51AObjections to be disregarded if respondent consents to control order
77Form of control order
78Notice of making of control order that applies to a declared organisation
79Application for variation or revocation of control order or ancillary order
80Section 58 substituted
58Determination of application for variation or revocation—control order
81New section 58A inserted
58ADetermination of application for variation or revocation—ancillary order
82Effect of registration of corresponding declaration
83Information to be kept on register
84Annual report
85New sections 135A, 135B and 135C inserted
135AConsent
135BCosts
135CAdjournment before costs order made
86Schedule amended
Division 2—Amendment of Firearms Act 1996
87Definitions
88General discretion of Chief Commissioner to refuse a longarm or handgun licence
89General discretion of Chief Commissioner to refuse a junior licence
90General discretion of Chief Commissioner to refuse a firearms collectors licence
91General discretion of Chief Commissioner to refuse a firearms heirlooms licence
92General discretion of Chief Commissioner to refuse a firearms ammunition collectors licence
93Review of decision not to issue a licence
94General discretion of Chief Commissioner to refuse to renew a licence or to alter or vary the conditions of a licence
95Power of Chief Commissioner to cancel licence under this Part
96Provisional general category handgun licences
97General discretion of Chief Commissioner to refuse a dealers licence
98General discretion of Chief Commissioner to refuse to renew a dealers licence
99Power of Chief Commissioner to cancel a dealers licence
100General discretion of Chief Commissioner to refuse to issue a permit to acquire
101Permit to store handguns
102Power of delegation
Division 3—Amendment of Fortification Removal Act 2013
103Definitions
104Schedule amended
Division 4—Amendment of Major Crime (Investigative Powers) Act 2004
105Definitions
106New section 3AA inserted
3AAMeaning of organised crime offence
107Application for order
Part 4—Criminal Procedure
Division 1—Amendment of Criminal Procedure Act 2009 relating to committal proceedings
108Contents of case direction notice
109Leave required to cross-examine other witnesses
110Cross-examination of witnesses
111New section 132A inserted
132ALeave to cross-examine witness on different issue
Division 2—Other amendments to Criminal Procedure Act 2009
112Definitions
113Summons for summary offence may be served by ordinary service
114New section 17A inserted
17AService of summons for traffic camera offence
115When full brief must be served
116Documents to be provided by police at first mention hearing
117Ordinary service
118New section 444 inserted
444Transitional provision—Criminal Organisations Control and Other Acts Amendment Act 2014
Part 5—Mental Impairment and Unfitness to be Tried
Division 1—Amendment of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
119Definitions
120Application to courts and proceedings
121Application to Magistrates' Court
122New section 5A inserted
5AApplication to Children's Court
123Orders pending investigation into fitness
124Amendment of section heading
125New Part 5A inserted
Part 5A—Proceedings in the Children's Court and Appeals from those Proceedings
Division 1—General
38GApplication of Part
38HDefinitions
38IConstitution of Children's Court
38JRemand in custody
Division 2—Unfitness to stand trial
38KWhen is a child unfit to stand trial?
38LPresumptions, standard of proof etc.
38MCommittals
38NReservation of question of fitness to stand trial by Children's Court
38OTime limit for investigation into fitness
38PChildren's Court may make orders pending investigation into fitness
38QProcedure on investigation
38RWhat happens after an investigation?
38SAbridgment of adjournment
38TWhat happens at the end of an adjournment?
38UAppeal in relation to fitness to stand trial
Division 3—Special hearings
38VPurpose of special hearings
38WProcedure at special hearings
38XFindings at special hearings
38YEffect of findings
38ZCourt may make orders pending making of supervision order
Division 4—Defence of mental impairment
38ZADefence of mental impairment
38ZBPresumptions, standard of proof etc.
38ZCWhen may the question of mental impairment be
raised?38ZDEffect of finding of not guilty because of mental impairment
38ZEAppeal against mental impairment finding
38ZFAppeal against unconditional release
Division 5—Disposition of children declared to be liable to supervision
38ZGApplication of Division
38ZHSupervision orders
38ZIHow long does a supervision order last?
38ZJAppeal against supervision order
38ZKNon-compliance with non-custodial supervision order
38ZLEmergency power of apprehension
38ZMWarrant to arrest child breaching non-custodial supervision order who leaves Victoria
38ZNApplication for variation or revocation of supervision order
38ZOVariation of custodial supervision orders on application or review
38ZPVariation or revocation of non-custodial supervision orders on application or review
38ZQTransfer of supervision order for review by County Court
Division 6—Reports as to supervision and victim impact statements
38ZRCourt must order report as to supervision
38ZSWho prepares a report?
38ZTContents of report
38ZUReport to be filed with court
38ZVAccess to reports
38ZWVictim impact statements
126Principle to be applied
127Matters to which the court is to have regard
128Certificate of available services
129Inadmissibility of evidence in other proceedings
130Extension of time for filing notice of appeal
131Transitional provision inserted
15Transitional provision—Criminal Organisations Control and Other Acts Amendment Act 2014
Division 2—Amendment of Children, Youth and Families
Act 2005
132Release on parole from youth residential centre
133Release on parole from youth justice centre
134Jurisdiction of Youth Residential Board
135Jurisdiction of Youth Parole Board
136Governor in Council may establish corrective services
137Children in detention
138Proceedings in which child is required to be legally
represented139Duties of youth justice officers
Division 3—Consequential and other amendments
140Accident Towing Services Act 2007
141Appeal Costs Act 1998
142Bus Safety Act 2009
143Coroners Act 2008
144Corrections Act 1986
145Criminal Organisations Control Act 2012
146Disability Act 2006
147Firearms Act 1996
148Juries Act 2000
149Legal Aid Act 1978
150Mental Health Act 2014
151Police Regulation Act 1958
152Sex Offenders Registration Act 2004
153Transport (Compliance and Miscellaneous) Act 1983
154Working with Children Act 2005
155Amendment consequential on Victoria Police Act 2013
Part 6—Major Crime Investigative Powers
156Purposes of Major Crime (Investigative Powers) Act 2004
157Definition
158Confidentiality of witness summons and orders
159When Chief Examiner may conduct an examination
160Preliminary requirements
161Failure of witnesses to attend and answer questions
162Privilege against self-incrimination abrogated
163Restriction on publication of evidence
164New sections 43A and 43B inserted
43ARelease of restricted evidence to a person charged with an offence
43BRelease of restricted evidence where person not yet charged
165Warrant for arrest of witness
166Contempt of Chief Examiner—removal of sunset
167Delegation
168Amendment of Criminal Procedure Act 2009
Part 7—Variation of Alcohol Exclusion orders
169Variation of alcohol exclusion orders
170New section 153 inserted
153Transitional provision—Criminal Organisations Control and Other Acts Amendment Act 2014—alcohol exclusion orders
Part 8—Miscellaneous Amendments
Division 1—Amendment of Criminal Procedure Act 2009
171Schedule 3 amended
Division 2—Amendment of Evidence (Miscellaneous Provisions) Act 1958
172List of persons who may witness statutory declarations
173Affidavits in Victoria how sworn and taken
Division 3—Amendment of Mental Health Act 2014
174Definitions
175Apprehension of person by police officer or protective services officer
Division 4—Amendment of Open Courts Act 2013
176Notice of applications for suppression orders
177Magistrates' Court may make order prohibiting publication of specified material
Division 5—Amendment of Personal Safety Intervention Orders Act 2010
178New section 16A inserted
16A Registrar must refuse to accept application
Division 6—Amendment of Summary Offences Act 1966
179Requirement to give name and address
Division 7—Amendment of Victorian Institute of Forensic Medicine Act 1985
180The Council
181Members of the Council
Division 8—Amendments relating to Victoria Police
182Promotion of police officers and protective services officers
183Unauthorised manufacture etc of Victoria Police identification or equipment
184Subject matter for regulations
185Transitional provisions
186Consequential amendment of Corrections Act 1986
Part 9—Repeal of Amending Act
187Repeal of amending Act
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Endnotes
Criminal Organisations Control and Other Acts Amendment Act 2014
No. 55 of 2014
[Assented to 26 August 2014]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
(1)The main purposes of Part 2 of this Act are to amend the Confiscation Act 1997—
(a)to modify the operation of the civil forfeiture regime to allow an application for a civil forfeiture restraining order to be made in relation to more than one Schedule 2 offence; and
(b)to modify the provisions relating to hardship so that a court may only take into account hardship that is undue hardship; and
(c)to introduce a regime for the automatic forfeiture of all property owned or controlled by a person convicted of a serious drug offence; and
(d)to permit the holders of prescribed positions within the Department of Justice to take control of restrained property and exercise the powers of a trustee in relation to that property.
(2)The main purposes of Part 3 of this Act are—
(a)to amend the Criminal Organisations Control Act 2012—
(i)to change the standard of proof that applies in relation to the making of declarations applying to individuals; and
(ii)to provide for the making of different kinds of declarations applying to organisations; and
(iii)to make further provision in relation to former members of declared organisations; and
(iv)to change the matters of which the Court must be satisfied in making control orders; and
(v)to provide for the making of declarations and control orders by consent; and
(vi)to provide for applicants, respondents and objectors to bear their own costs in proceedings under that Act; and
(vii)to apply that Act in relation to a wider range of offences; and
(b)to amend the Firearms Act 1996 to change how that Act operates in relation to declared individuals and declared organisation members; and
(c)to amend the Fortification Removal Act 2013 to apply that Act in relation to a wider range of offences; and
(d)to amend the Major Crime (Investigative Powers) Act 2004 to change how that Act operates in relation to organised crime offences involving a declared individual or a declared organisation member.
(3)The main purpose of Part 4 of this Act is to amend the Criminal Procedure Act 2009 in relation to—
(a)the cross-examination of a witness at a committal hearing; and
(b)the service of documents relating to traffic camera offences.
(4)The main purposes of Part 5 of this Act are—
(a)to amend the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and the Children, Youth and Families Act 2005—
(i)to enable the Children's Court to determine the issue of fitness to stand trial in relation to offences within the jurisdiction of the Children's Court; and
(ii)if the Children's Court finds that a child is unfit to stand trial and committed the offence charged, to enable the Children's Court to declare the child liable to supervision; and
(iii)after a finding of not guilty because of mental impairment for offences within the jurisdiction of the Children's Court, to enable the Children's Court to declare a child liable to supervision; and
(b)to amend the Working with Children Act 2005 to include in the definition of finding of guilt a finding of not guilty on account of insanity.
(5)The main purposes of Part 6 of this Act are—
(a)to amend the Major Crime (Investigative Powers) Act 2004 to improve the operation of that Act; and
(b)to make a related amendment to the Criminal Procedure Act 2009.
(6)The main purpose of Part 7 of this Act is to amend the Sentencing Act 1991 in relation to alcohol exclusion orders.
(7)The main purpose of Part 8 of this Act is to make miscellaneous amendments to the Criminal Procedure Act 2009, the Evidence (Miscellaneous Provisions) Act 1958, the Mental Health Act 2014, the Open Courts Act 2013, the Personal Safety Intervention Orders Act 2010, the Summary Offences Act 1966, the Victorian Institute of Forensic Medicine Act 1985 and the Victoria Police Act 2013.
2Commencement
(1)This Part, Part 2 (except Division 3), Division 4 of Part 5, section 154(2), Part 6 and Part 8 (except Division 5) come into operation on the day after the day on which this Act receives the Royal Assent.
(2)Section 155 comes into operation on the later of—
(a)the day on which section 125 comes into operation; or
(b)the day on which section 278 of the Victoria Police Act 2013 comes into operation.
(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 March 2015, it comes into operation on that day.
__________________
Part 2—Confiscation
Division 1—Amendments relating to civil forfeiture
3Definitions
In section 3(1) of the Confiscation Act 1997, in the definition of tainted property—
(a) omit ", in relation to an offence,";
(b)in paragraph (a)(i), (iii) and (iv), for "the Schedule 2 offence" substitute "one or more Schedule 2 offences";
(c)in paragraph (b), after "property that" insert ", in relation to an offence".
4Property may be subject to both civil forfeiture restraining order and restraining order
In section 36J(2)(a) of the Confiscation Act 1997, for "the Schedule 2 offence" substitute
"a Schedule 2 offence".
5Application for civil forfeiture restraining order
(1)In section 36K(1) and (2)(b) of the Confiscation Act 1997 omit "in relation to a Schedule 2 offence".
(2)In section 36K(3) of the Confiscation Act 1997, after "the Schedule 2 offence" insert "or any one or more of the Schedule 2 offences".
(3)In section 36K(6) of the Confiscation Act 1997—
(a)in paragraph (a), after "offence" insert
"or offences";
(b)in paragraph (b), after "offence" insert
"or different Schedule 2 offences".
6Determination of application for civil forfeiture restraining order
(1)In section 36M(a) of the Confiscation Act 1997 omit "in relation to a Schedule 2 offence".
(2)At the end of section 36M of the Confiscation Act 1997 insert—
"(2)To avoid doubt, if an application under section 36K for a civil forfeiture restraining order in respect of property is made in relation to more than one Schedule 2 offence, the court may be satisfied that the deponent of the affidavit reasonably suspects that the property is tainted property despite the deponent being unable to specify—
(a)in relation to which of the Schedule 2 offence or offences the property is tainted; or
(b)the extent to which the property is tainted in relation to each of the Schedule 2 offences.".
7Court directions to provide information
In section 36S(2)(a) of the Confiscation Act 1997, for "the Schedule 2 offence" substitute
"a Schedule 2 offence".
8Application for exclusion from civil forfeiture restraining order
(1)In section 36U(7) of the Confiscation Act 1997—
(a)in paragraph (a) omit "in relation to a Schedule 2 offence";
(b)in paragraph (b), for "the offence or any other offence" substitute "an offence".
(2)In section 36U(8) of the Confiscation Act 1997—
(a)in paragraph (a) omit "in relation to a Schedule 2 offence";
(b)in paragraph (b), for "the offence or any other offence" substitute "an offence".
(3)In section 36U(9) of the Confiscation Act 1997—
(a)in paragraph (a) omit "in relation to a Schedule 2 offence";
(b)in paragraph (b), for "the Schedule 2 offence or a related offence" substitute
"a Schedule 2 offence".
9Determination of application for exclusion from civil forfeiture restraining order
(1)In section 36V(1)(b) of the Confiscation Act 1997—
(a)for subparagraphs (i) and (ii) substitute—
"(i)the applicant was not, in any way, involved in the commission of any relevant Schedule 2 offence; and
(ii)where the applicant acquired the interest before the commission, or alleged commission, of the relevant Schedule 2 offences, the applicant did not know that the property—
(A)would be, or was intended to be, used in, or in connection with, the commission of any of those offences; or
(B)was likely to be, or intended to be, used in, or in connection with, the future commission of any of those offences; and";
(b)in subparagraph (iii), for "the Schedule 2 offence" substitute "the relevant Schedule 2 offences".
(2)After section 36V(2) of the Confiscation Act 1997 insert—
"(3)In this section—
relevant Schedule 2 offence means a Schedule 2 offence in relation to which the civil forfeiture restraining order was made.".
10Priority given to payment of restitution or compensation
In section 36ZA(1) of the Confiscation Act 1997, for "the offence" substitute "an offence".
11Application for civil forfeiture order
In section 37(7) of the Confiscation Act 1997, after "Schedule 2 offence" insert "or any one or more of the same Schedule 2 offences".
12Application for exclusion from civil forfeiture order
(1)In section 40A(9) of the Confiscation Act 1997—
(a)in paragraph (a) omit "in relation to a Schedule 2 offence";
(b)in paragraph (b), for "the offence or any other offence" substitute "an offence".
(2)In section 40A(10) of the Confiscation Act 1997—
(a)in paragraph (a) omit "in relation to a Schedule 2 offence";
(b)in paragraph (b), for "the offence or any other offence" substitute "an offence".
(3)In section 40A(11) of the Confiscation Act 1997—
(a)in paragraph (a) omit "in relation to a Schedule 2 offence";
(b)in paragraph (b) for "the Schedule 2
offence or a related offence" substitute
"a Schedule 2 offence".
13Determination of application for exclusion from civil forfeiture order
(1)In section 40B(1)(b) of the Confiscation Act 1997—
(a)for subparagraphs (i) and (ii) substitute—
"(i)the applicant was not, in any way, involved in the commission of any relevant Schedule 2 offence; and
(ii)where the applicant acquired the interest before the commission, or alleged commission, of the relevant Schedule 2 offences, the applicant did not know that the property—
(A)would be, or was intended to be, used in, or in connection with, the commission of any of those offences; or
(B)was likely to be, or intended to be, used in, or in connection with, the future commission of any of those offences; and";
(b)in subparagraph (iii), for "the Schedule 2 offence" substitute "the relevant Schedule 2 offences".
(2)After section 40B(2) of the Confiscation Act 1997 insert—
"(3)In this section—
relevant Schedule 2 offence means a Schedule 2 offence in relation to which the civil forfeiture restraining order was made.".
Division 2—Amendments relating to hardship
14Determination of application for forfeiture order
(1)For section 33(5)(b) of the Confiscation Act 1997 substitute—
"(b)subject to subsection (5A), any undue hardship that may reasonably be likely to be caused to any person by the order; and".
(2)After section 33(5) of the Confiscation Act 1997 insert—
"(5A)For the purposes of subsection (5)(b), when having regard to any hardship caused to the person convicted of the offence in relation to which the forfeiture order is sought, the court must not take into account the impact on that person of the sentence given for that offence.".
15Determination of application for civil forfeiture order
In section 38(2) of the Confiscation Act 1997, for "hardship" substitute "undue hardship".
16Relief from hardship
(1)Insert the following heading to section 45 of the Confiscation Act 1997—
"Relief from undue hardship".
(2)In section 45(1) of the Confiscation Act 1997, for "If a court is satisfied that hardship" substitute "Subject to subsection (1A), if a court is satisfied that undue hardship".
(3)In section 45(1)(a) of the Confiscation Act 1997, for "hardship" substitute "undue hardship".
(4)After section 45(1) of the Confiscation Act 1997 insert—
"(1A)For the purposes of subsection (1), when determining whether undue hardship may be caused by a forfeiture order to the person convicted of the offence in relation to which the forfeiture order has been made, the court must not take into account the impact on that person of the sentence given for that offence.".
Division 3—Amendments relating to serious drug offender regime
Subdivision 1—Amendment of Confiscation Act 1997
17Definitions
In section 3(1) of the Confiscation Act 1997—
(a)in the definition of automatic forfeiture, after paragraph (a) insert—
"(ab)forfeiture under section 36GA; or";
(b)in the definition of restraining order, after "section 18" insert ", including a serious drug offence restraining order";
(c)insert the following definitions—
"protected property has the meaning given by section 24(2);
serious drug offence means an offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981 committed in the circumstances specified (if any)—
(a)section 71 (trafficking in a drug or drugs of dependence—large commercial quantity);
(b)section 72 (cultivation of narcotic plants—large commercial quantity);
(c)section 79(1) or 80(3)(a) (conspiracy)—where the conspiracy is to commit an offence specified in paragraph (a) or (b);
(d)section 80(1) or 80(3)(b) (aiding and abetting etc.)—where the offence that is aided, abetted, counselled, procured, solicited or incited is an offence specified in paragraph (a) or (b);
serious drug offence restraining order means a restraining order made under section 18 for the purpose referred to in section 15(1)(c);
serious drug offender means a person declared under section 89DI of the Sentencing Act 1991 to be a serious drug offender;".
18Purposes for which a restraining order may be made
After section 15(1)(b) of the Confiscation Act 1997 insert—
"(c)to satisfy automatic forfeiture of property that may occur under Division 4 of Part 3;".
19New section 15A inserted
After section 15 of the Confiscation Act 1997 insert—
"15A Property may be subject to both restraining order and civil forfeiture restraining order
(1)Property or an interest in property may be subject to both a restraining order under this Part and a civil forfeiture restraining order.
(2)If both a restraining order under this Part made for the purposes of section 15(1)(a), (b) or (c) and a civil forfeiture restraining order apply in relation to the same property or interest in property, the restraining order under this Part, to the extent that it applies to that property or interest in property, remains in operation until the earliest of—
(a)the property being able to be disposed of in accordance with section 44(2) because a civil forfeiture order under Division 2 of Part 4 has been made in relation to the same property or interest in property to which the restraining order applies; or
(b)the restraining order ceasing to operate or being set aside in whole or in part under section 27; or
(c)the property or interest in property being excluded from the operation of the restraining order by an exclusion order.".
20Application for restraining order
(1)After section 16(2) of the Confiscation Act 1997 insert—
"(2A)The DPP or a prescribed person, or a person belonging to a prescribed class of persons, may apply, without notice, to the Supreme Court or the County Court for a serious drug offence restraining order in respect of property if—
(a)a member of the police force or a person authorised by or under an Act to prosecute the relevant type of offence believes that—
(i)within the next 48 hours a person will be charged with a serious drug offence; and
(ii)that person has an interest in the property; or
(b)a person has been charged with a serious drug offence and that person has an interest in the property; or
(c)a person has been convicted of a serious drug offence and that person has an interest in the property.".
(2)In section 16(3) of the Confiscation Act 1997, after "subsection (2)" insert "or (2A)".
(3)In section 16(4) of the Confiscation Act 1997—
(a)for "subsection (1) or (2)(b), (c) or (d)" substitute "subsection (1), (2) or (2A)";
(b)for paragraph (d) substitute—
"(d)that—
(i)in the case of an application under subsection (1) or (2)—the accused has an interest in the property or the property is tainted property (as the case may be); and
(ii)in the case of an application under subsection (2A)—the accused has an interest in the property; and".
(4)In section 16(6) of the Confiscation Act 1997, for "subsection (1) or (2)" substitute "subsection (1), (2) or (2A)".
(5)In section 16(7) of the Confiscation Act 1997, after "subsection (2)" insert "or (2A)".
(6)In section 16(8) of the Confiscation Act 1997, after "subsection (1)" insert "or (2A)".
(7)After section 16(8) of the Confiscation Act 1997 insert—
"(9)An application under subsection (2A) in relation to property or an interest in property does not preclude an application under subsection (1) or (2) in relation to the same property or interest in property.".
21Procedure on application
In section 17(1), (1B) and (1C) of the Confiscation Act 1997, for "section 16(1) or 16(2)" substitute "section 16(1), (2) or (2A)".
22Determination of application
In section 18(1) of the Confiscation Act 1997—
(a)for "section 16(1) or (2)(b), (c) or (d)" substitute "section 16(1), (2) or (2A)";
(b)for "a Schedule 1 offence or a Schedule 2 offence" substitute "a Schedule 1 offence, a Schedule 2 offence or a serious drug offence".
23Court directions to provide information
In section 19D(2)(a) of the Confiscation Act 1997, for "Schedule 1 offence or Schedule 2 offence" substitute "Schedule 1 offence, Schedule 2 offence or serious drug offence".
24Application for exclusion from restraining order
(1)For section 20(1) of the Confiscation Act 1997 substitute—
"(1)If a court makes a restraining order against property under section 18, the following persons may apply to that court for an order under section 21, 22 or 22A—
(a)in the case of an application for an order under section 21 or 22—any person claiming an interest in the property, including the accused;
(b)in the case of an application for an order under section 22A—any person claiming an interest in the property, other than the accused.".
(2)In section 20(3) of the Confiscation Act 1997, for "section 21 or 22" (wherever occurring) substitute "section 21, 22 or 22A".
(3)In section 20(7) of the Confiscation Act 1997—
(a)for "section 21 or 22" substitute "section 21, 22 or 22A";
(b)for "the charge referred to in subsection (6)(b)" substitute "the charge for the offence in relation to which the restraining order is made or for any related offence".
25New section 22A inserted
After section 22 of the Confiscation Act 1997 insert—
"22A Determination of exclusion application—serious drug offence restraining order
(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 if the court is satisfied that—
(a)the applicant was not, in any way, involved in the commission of the serious drug offence; and
(b)the applicant's interest in the property was not subject to the effective control of the accused on the earlier of—
(i)the date that the accused was charged with the serious drug offence; or
(ii)the date that the serious drug offence restraining order was made in relation to the property; and
(c)where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration.
(2)If the court makes an order under subsection (1), the court may also make an order declaring the nature, extent and value of the applicant's interest in the property.
Note
Property excluded from a serious drug offence restraining order may continue to be restrained if a restraining order has also been made in relation to the property for the purpose referred to in section 15(1)(b).".
26New section 24 inserted
After section 23 of the Confiscation Act 1997 insert—
"24 Protected property not to be included in serious drug offence restraining order
(1)A restraining order made for the purposes of section 15(1)(c) must not include property that is protected property.
(2)For the purposes of subsection (1) and subject to subsection (3), the following property is protected property—
(a)property used by the accused or a dependant of the accused primarily as a means of transport;
(b)any item of necessary clothing of the accused or a dependant of the accused;
(c)any item of ordinary household property of the accused or a dependant of the accused;
(d)any tools of trade required by the accused or a dependant of the accused in earning income.
(3)An item or property of a category referred to in subsection (2) is not protected property if the value of the item exceeds the amount prescribed for that category.
(4)Subject to subsection (5), property that is excluded from a serious drug offence restraining order because it is protected property must also be excluded from any other restraining order under which the property is restrained.
(5)Subsection (4) does not apply to property that, for the purposes of the other restraining order, is tainted property.
(6)In this section—
dependant, of the accused, means a person who—
(a)has resided with the accused for a substantial period of time immediately prior to the making of the restraining order; and
(b)is wholly or substantially dependent on the accused for—
(i)financial support; or
(ii)personal care because the person has a severe disability, a medical condition or a condition of frailty;
necessary clothing does not include jewellery, collectible watches or clothing that is kept as part of a collection;
ordinary household items does not include antiques, collections, collectible items and artwork.".
27Duration and setting aside of restraining order
(1)In section 27(1) of the Confiscation Act 1997, after "restraining order" insert "(other than a serious drug offence restraining order)".
(2)After section 27(1) of the Confiscation Act 1997 insert—
"(2)If—
(a)a serious drug offence restraining order is made in reliance on the proposed charging of an accused with a serious drug offence; and
(b)at the end of the period of 48 hours after the making of the serious drug offence restraining order, the accused has not been charged with the offence or a related offence that is a serious drug offence—
the serious drug offence restraining order ceases to be in force at the end of that period.".
(3)In section 27(3) of the Confiscation Act 1997, after "restraining order" insert "(other than a serious drug offence restraining order)".
(4)After section 27(3) of the Confiscation Act 1997 insert—
"(3A)If—
(a)a serious drug offence restraining order is made in reliance on the charging, or proposed charging, of an accused with a serious drug offence; and
(b)the charge is withdrawn and the accused is not charged with a related offence that is a serious drug offence by the time of the withdrawal—
the serious drug offence restraining order ceases to be in force on the expiry of 7 days after the charge is withdrawn.
(3B)If—
(a)a serious drug offence restraining order is made in reliance on the charging, or proposed charging, of an accused with a serious drug offence; and
(b)the accused is acquitted of the charge and the accused is not charged with a related offence that is a serious drug offence by the time of the acquittal—
the serious drug offence restraining order ceases to be in force when the acquittal occurs.
(3C)If—
(a)a serious drug offence restraining order is made in reliance on the conviction of an accused of a serious drug offence; and
(b)the conviction of the accused of the offence is subsequently set aside—
the serious drug offence restraining order ceases to be in force when the appeal period expires unless a new trial has been ordered at the time of the setting aside of the conviction.".
(5)In section 27(5) and (6) of the Confiscation Act 1997, after "restraining order" insert "(other than a serious drug offence restraining order)".
28Application for freezing order
In section 31D(1)(a) of the Confiscation Act 1997—
(a)in subparagraph (i), for "a Schedule 1 offence or a Schedule 2 offence" substitute
"a Schedule 1 offence, a Schedule 2 offence or a serious drug offence";
(b)in subparagraph (iii), for "such an offence" substitute "a Schedule 1 offence or a Schedule 2 offence".
29New Division 4 of Part 3 inserted
After Division 3 of Part 3 of the Confiscation Act 1997 insert—
"Division 4—Automatic forfeiture of property of serious drug offender
36GAAutomatic forfeiture of restrained property on declaration that person is serious drug offender
(1)Property of a person that is the subject of a serious drug offence restraining order is forfeited to the Minister in accordance with this section if—
(a)a declaration is made under section 89DI of the Sentencing Act 1991 that the person is a serious drug offender consequent to the conviction of the person of a serious drug offence; and
(b)the serious drug offence restraining order is or was made under Part 2 in reliance on—
(i)the conviction of the person of that offence; or
(ii)the charging or proposed charging of the person with that offence or a related offence that is a serious drug offence; and
(c)the restrained property is not the subject of an exclusion order under section 22A; and
(d)the restrained property is not protected property.
(2)Unless an application under section 20 for an exclusion order in respect of the restrained property is still pending, the restrained property is forfeited to the Minister on the expiry of 60 days after the later of—
(a)the making of the restraining order; or
(b)the conviction of the accused.
(3)If, on the expiry of the 60 days referred to in subsection (2), an application under section 20 for an exclusion order in respect of the restrained property is still pending, the restrained property is forfeited to the Minister—
(a)if the application is refused or dismissed—
(i)at the end of the period during which the person may appeal against the refusal or dismissal; or
(ii)if an appeal against the refusal or dismissal is lodged—when the appeal is abandoned or finally determined without the order having been made; or
(b)if the application is withdrawn or struck out—on that withdrawal or striking out.
(4)For the purposes of subsections (2) and (3), an application under section 20 is not pending unless an application under section 20(1) has been made—
(a)within the period referred to in section 20(1A); or
(b)where, under section 20(1B), the court has extended the period within which the application may be made—within the period as so extended and before the expiry of the period of 60 days referred to in subsection (2).
36GBDeclaration that property has been forfeited
(1)If a court makes a serious drug offence restraining order, a person may apply to the court that made the order for a declaration that property that was subject to the serious drug offence restraining order has been forfeited to the Minister under section 36GA and the court, if satisfied that the property has been forfeited to the Minister under that section, must make a declaration accordingly.
(2)An applicant under this section for a declaration that property has been forfeited is not required to give notice of the application to any person who has an interest in the property.
Note
Section 14 provides that a restraining order may be made in respect of property or an interest in property.".
30Property may be subject to both civil forfeiture restraining order and restraining order
(1)In section 36J(2) of the Confiscation Act 1997 for "section 15(1)(a) or (b)" substitute
"section 15(1)(a), (b) or (c)".
(2)After section 36J(2)(a) of the Confiscation Act 1997 insert—
"(ab)the property being able to be disposed of in accordance with section 44(2) because the property has been forfeited under section 36GA on the owner of the property being declared to be a serious drug offender;".
31Effect of forfeiture
In section 41(2)(b), (3) and (4) of the Confiscation Act 1997, after "section 35" insert "or 36GA".
32Disposal of forfeited property
(1)In section 44(1) of the Confiscation Act 1997, after "section 35" insert "or 36GA".
(2)In section 44(2) of the Confiscation Act 1997 for "section 49 or 51" substitute "section 49, 51 or 53".
(3)In section 44(3)(b) of the Confiscation Act 1997—
(a)after "automatic forfeiture" insert "under section 35";
(b)for "determined." substitute "determined;".
(4)After section 44(3)(b) of the Confiscation Act 1997 insert—
"(ba)in the case of automatic forfeiture under section 36GA, when an appeal may no longer be lodged against either the conviction in reliance on which automatic forfeiture occurred or a refusal to make an exclusion order under section 22A or, if such an appeal is lodged, when the appeal is abandoned or finally determined;".
(5)In section 44(3A) of the Confiscation Act 1997—
(a)for "section 49 or 51" substitute "section 49, 51 or 53";
(b)in paragraph (a)(i), for "section 49(2), 51(2) or 40A(2)" substitute "section 49(2), 51(2), 53(2) or 40A(2)";
(c)in paragraph (a)(ii), for "section 49(3), 51(3) or 40A(3)" substitute "section 49(3), 51(3), 53(3) or 40A(3)";
(d)in paragraph (b), for "section 40A(4) or 51(4)" substitute "section 40A(4), 51(4) or 53(4)".
(6)In section 44(4) and (6) of the Confiscation Act 1997, after "section 35" insert "or 36GA".
33New section 45A inserted
After section 45 of the Confiscation Act 1997 insert—
"45A Relief from automatic forfeiture of property of serious drug offender
(1)If the residence of a serious drug offender is forfeited under section 36GA, an application may be made by a dependant of the serious drug offender to the court that made the serious drug offence restraining order for relief from the forfeiture of the residence.
(2)An application under subsection (1) must be made within 30 days after the property is forfeited to the Minister.
(3)On an application under subsection (1), the court may order that the amount referred to in subsection (4) be paid to the dependant out of the proceeds of the sale of the forfeited residence for the purpose of securing new accommodation if the court is satisfied that—
(a)the forfeited residence is the principal place of residence of the dependants; and
(b)the forfeited residence is not tainted property for the purpose of automatic forfeiture under Division 2 of Part 3 or derived property; and
(c)the dependants of the serious drug offender do not have the means to secure accommodation of a value equivalent to the prescribed amount.
(4)The amount that a court may order under subsection (3) be paid to a dependent is—
(a)the prescribed amount; or
(b)in the event that the proceeds of the sale of the forfeited residence are less than the prescribed amount—the amount of those proceeds.
(5)The court may order one payment only from the proceeds of the sale of the forfeited residence.
Example
If dependant A and dependant B each apply to the court for an order under this section, the court may order that the prescribed amount be paid to dependant A or to dependant B but not to each of dependant A and dependant B.
(6)An applicant for an order under subsection (1) must give written notice of the application to the Minister or a person prescribed for the purposes of section 44(1).
(7)In this section—
dependant, of a serious drug offender, means a person who—
(a)has resided with the serious drug offender in the forfeited residence for a substantial period of time immediately prior to the making of the serious drug offence restraining order; and
(b)is wholly or substantially dependent on the serious drug offender for—
(i)financial support; or
(ii)personal care because the person has a severe disability, a medical condition or a condition of frailty.".
34Discharge of automatic forfeiture in respect of an interest
(1)After section 47(1) of the Confiscation Act 1997 insert—
"(1A)Automatic forfeiture under section 36GA is discharged in respect of an interest in property if—
(a)the conviction in reliance on which the automatic forfeiture occurred is subsequently set aside; or
(b)an exclusion order in respect of the interest is made, whether on appeal or otherwise.".
(2)In section 47(2) of the Confiscation Act 1997, after "subsection (1)" insert "or in subsection (1A)".
35New sections 53 and 54 inserted
After section 52 of the Confiscation Act 1997 insert—
"53 Application for exclusion from automatic forfeiture of property of serious drug offender
(1)If property is forfeited to the Minister under section 36GA, a person (other than the accused) who claims to have had an interest in the property immediately before it was forfeited may, subject to subsections (2) and (4), apply to the court that made the relevant serious drug offence restraining order for an order under section 54.
(2)The application must, subject to subsection (3), be made before the end of the period of 60 days commencing on the day on which the property is forfeited to the Minister.
(3)Subject to subsection (6), the court that made the relevant serious drug offence restraining order may grant a person leave to apply after the end of the period referred to in subsection (2) if it is satisfied that the delay in making the application is not due to neglect on the part of the applicant.
(4)An application for an order under section 54 in relation to an interest in property must not be made by a person who was given notice of—
(a)proceedings on the application for the relevant serious drug offence restraining order; or
(b)the making of the relevant serious drug offence restraining order—
except with the leave of the court that made the relevant serious drug offence restraining order.
(5)Subject to subsection (6), the court may grant a person leave under subsection (4) to make an application if the court is satisfied that the person's failure to seek to have that person's interest in the property excluded from the relevant serious drug offence restraining order was not due to neglect on the part of the applicant.
(6)The court may not grant a person leave under subsection (3) or (5) to make an application in respect of property that has been disposed of in accordance with section 44.
(7)An applicant must give written notice of the application, and of the grounds on which it is made—
(a)to the DPP; and
(b)to any person whom the applicant has reason to believe had an interest in the property immediately before it was forfeited; and
(c)to a person prescribed for the purposes of section 44(1).
(8)Any person notified under subsection (7) is entitled to appear and to give evidence at the hearing of the application but the absence of that person does not prevent the court from making an order under section 54.
(9)If the DPP proposes to contest an application for an exclusion order, the DPP must give the applicant written notice of the grounds on which the application is to be contested.
54Determination of application from exclusion from automatic forfeiture of property of serious drug offender
(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 if the court is satisfied that—
(a)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
(b)the applicant's interest in the property was not subject to the effective control of the accused on the earlier of—
(i)the date that the accused was charged with the serious drug offence; or
(ii)the date that the serious drug offence restraining order was made in relation to the property; and
(c)where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration.
(2)If the court makes an order under subsection (1), the court may also make an order declaring the nature, extent and value of the applicant's interest in the property.".
36Application to the Minister for return of property or payment of value
(1)In section 55(1)(b) of the Confiscation Act 1997, after "section 47(1)(a), (b) or (c)" insert
"or (1A)(a) or (b)".
(2)In section 55(2) of the Confiscation Act 1997, for "section 50(1) or 52(1)" substitute "section 50(1), 52(1) or 54(1)".
(3)In section 55(4), (6)(b) and (9) of the Confiscation Act 1997, for "section 14(4), 36H(4) or 45" substitute "section 14(4), 36H(4), 45 or 45A".
(4)In section 55(6)(a) and (9)(a) of the Confiscation Act 1997, for "section 50(2) or 52(2)" substitute
"section 50(2), 52(2) or 54(2)".
37Liability under forfeiture or pecuniary penalty order to be satisfied by trustee
In section 75(2) of the Confiscation Act 1997, after "section 35" insert "or 36GA".
38Order for examination
(1)In section 98(2) of the Confiscation Act 1997—
(a)in paragraph (a), for "a Schedule 1 offence or a Schedule 2 offence" substitute
"a Schedule 1 offence, a Schedule 2 offence or a serious drug offence";
(b)after paragraph (a)(i) insert—
"(ia)a serious drug offence restraining order against property under section 18; or".
(2)In section 98(2A) of the Confiscation Act 1997, for "a Schedule 1 offence or a Schedule 2 offence" substitute "a Schedule 1 offence, a Schedule 2 offence or a serious drug offence".
(3)In section 98(5) of the Confiscation Act 1997, for "a Schedule 2 offence" substitute "a Schedule 2 offence or a serious drug offence".
39Application for production order
In section 100(1) of the Confiscation Act 1997, for "a Schedule 1 offence or a Schedule 2 offence" substitute "a Schedule 1 offence, a Schedule 2 offence or a serious drug offence".
40Application for search warrant for property-tracking documents
(1)In section 109(1) of the Confiscation Act 1997, for "a Schedule 1 offence or a Schedule 2 offence" substitute "a Schedule 1 offence, a Schedule 2 offence or a serious drug offence".
(2)In section 109(2) of the Confiscation Act 1997, for "the Schedule 1 offence or the Schedule 2 offence" substitute "the Schedule 1 offence, the Schedule 2 offence or the serious drug offence".
41Application for monitoring order
In section 115(2)(a) of the Confiscation Act 1997—
(a)in subparagraph (i), for "a Schedule 1 offence or a Schedule 2 offence" substitute
"a Schedule 1 offence, a Schedule 2 offence or a serious drug offence";
(b)in subparagraph (iii), for "such an offence" substitute "a Schedule 1 offence or a Schedule 2 offence".
42Issuing information notices—authorised member of police force
In section 118D(2)(a) of the Confiscation Act 1997—
(a)in subparagraph (i), for "a Schedule 1 offence or a Schedule 2 offence" substitute
"a Schedule 1 offence, a Schedule 2 offence or a serious drug offence";
(b)in subparagraph (iii), for "such an offence" substitute "a Schedule 1 offence or a Schedule 2 offence".
43Interstate orders and search warrants
In section 131(3) of the Confiscation Act 1997, for "a Schedule 1 offence or a Schedule 2 offence" substitute "a Schedule 1 offence, a Schedule 2 offence or a serious drug offence".
44Crime Prevention and Victims' Aid Fund
In section 134(3) of the Confiscation Act 1997, after "section 35" insert "or 36GA".
45Conversion costs
In section 135 of the Confiscation Act 1997, after "section 35" insert "or 36GA".
46Appeals
In section 142(1)(b), (4) and (5)(ba) of the Confiscation Act 1997, for "section 21, 22, 50(1) or 52(1)" (wherever occurring) substitute "section 21, 22, 22A, 50(1), 52(1) or 54(1)".
47New section 188 inserted
After section 187 of the Confiscation Act 1997 insert—
"188 Transitional—Criminal Organisations Control and Other Acts Amendment Act 2014
(1)An application under section 16(2A) for a serious drug offence restraining order may only be made in relation to a serious drug offence that is committed, or alleged to have been committed, after the commencement of section 20 of the Criminal Organisations Control and Other Acts Amendment Act 2014.
(2)For the purposes of subsection (1), if an offence is committed, or alleged to have been committed, between two dates and section 20 of the Criminal Organisations Control and Other Acts Amendment Act 2014 commences on a date between those two dates, the offence is taken to have been committed, or alleged to have been committed, before the commencement of that section.".
Subdivision 2—Amendment of Sentencing Act 1991
48Sentencing guidelines
(1)In section 5(2A)(ab) of the Sentencing Act 1991 after "under" insert "Division 2 or 3 of Part 3 of".
(2)In section 5(2A)(e) of the Sentencing Act 1991, after "Schedule 2 offence" insert "or a serious drug offence".
49New Division 5 of Part 4 inserted
At the end of Part 4 of the Sentencing Act 1991 insert—
"Division 5—Serious drug offender
89DIDeclaration by court that person is serious drug offender
(1)On the conviction of a person by a court for a serious drug offence, the court must make an order declaring the person to be a serious drug offender.
(2)In this section—
serious drug offence has the same meaning as in section 3(1) of the Confiscation Act 1997.".
Subdivision 3—Amendment of Drugs, Poisons and Controlled Substances Act 1981
50Trafficking in a drug or drugs of dependence—large commercial quantity
At the foot of section 71 of the Drugs, Poisons and Controlled Substances Act 1981 insert—
"Note
An offence against this section is a serious drug offence for the purposes of the Confiscation Act 1997. On the conviction of a person for a serious drug offence, the court must make an order under section 89DI of the Sentencing Act 1991 declaring the person to be a serious drug offender.".
51Cultivation of narcotic plants—large commercial quantity
At the foot of section 72 of the Drugs, Poisons and Controlled Substances Act 1981 insert—
"Note
An offence against this section is a serious drug offence for the purposes of the Confiscation Act 1997. On the conviction of a person for a serious drug offence, the court must make an order under section 89DI of the Sentencing Act 1991 declaring the person to be a serious drug offender.".
52Conspiring
At the foot of section 79(1) of the Drugs, Poisons and Controlled Substances Act 1981 insert—
"Note
An offence against this section is a serious drug offence for the purposes of the Confiscation Act 1997 where the conspiracy is to commit an offence against section 71 or 72. On the conviction of a person for a serious drug offence, the court must make an order under section 89DI of the Sentencing Act 1991 declaring the person to be a serious drug offender.".
53Aiding and abetting etc.
(1)At the foot of section 80(1) of the Drugs, Poisons and Controlled Substances Act 1981 insert—
"Note
An offence against this section is a serious drug offence for the purposes of the Confiscation Act 1997 where the offence that is aided, abetted, counselled, procured, solicited or incited is an offence against section 71 or 72. On the conviction of a person for a serious drug offence, the court must make an order under section 89DI of the Sentencing Act 1991 declaring the person to be a serious drug offender.".
(2)At the foot of section 80(3) of the Drugs, Poisons and Controlled Substances Act 1981 insert—
"Note
An offence against this section is a serious drug offence for the purposes of the Confiscation Act 1997 where the conspiracy is to commit an offence that, if committed in Victoria, would be an offence against section 71 or 72 or the offence that is aided, abetted, counselled, procured, solicited or incited is an offence that, if committed in Victoria, would be an offence against section 71 or 72. On the conviction of a person for a serious drug offence, the court must make an order under section 89DI of the Sentencing Act 1991 declaring the person to be a serious drug offender.".
Division 4—Amendments relating to management of restrained property
54Restraining orders
For section 14(3) of the Confiscation Act 1997 substitute—
"(3)If the court making a restraining order considers that the circumstances so require, the order may direct one of the following to take control of some or all of the property specified in the order—
(a)a trustee specified in the order;
(b)a person holding a prescribed position within the Department of Justice.".
55Further orders
(1)In section 26(5)(ga) of the Confiscation Act 1997—
(a)for "a trustee" (where first occurring) substitute "a trustee or a person holding a prescribed position referred to in section 14(3)";
(b)for "a trustee" (where secondly occurring) substitute "a trustee or a person holding a prescribed position referred to in that section".
(2)In section 26(5)(h) of the Confiscation Act 1997—
(a)for "a trustee" substitute "a trustee or a person holding a prescribed position referred to in section 14(3)";
(b)in subparagraph (i), for "the trustee" substitute "the trustee or the person holding a prescribed position".
56Civil forfeiture restraining orders
For section 36H(3) of the Confiscation Act 1997 substitute—
"(3)If the Supreme Court or the County Court, when making a civil forfeiture restraining order, considers that the circumstances so require, the order may direct one of the following to take control of some or all of the property specified in the order—
(a)a trustee specified in the order;
(b)a person holding a prescribed position within the Department of Justice.".
57Further orders
In section 36W(6) of the Confiscation Act 1997—
(a)in paragraph (h), for "a trustee" (wherever occurring) substitute "a trustee or a person holding a prescribed position referred to in section 36H(3)";
(b)in paragraph (i)—
(i)for "a trustee" substitute "a trustee or a person holding a prescribed position referred to in section 36H(3)";
(ii)in subparagraph (i), for "the trustee" substitute "the trustee or the person holding a prescribed position".
58Liability under forfeiture or pecuniary penalty order to be satisfied by trustee
After section 75(2) of the Confiscation Act 1997 insert—
"(3)If a court, when making a restraining order or a civil forfeiture restraining order, directs a person holding a prescribed position referred to in section 14(3) or 36H(3) (as the case may be) to take control of property, a reference in subsections (1) and (2) to the trustee is to be read as a reference to the person holding the prescribed position.".
59Provisions concerning trustee
After section 76(7) of the Confiscation Act 1997 insert—
"(8)If a court, when making a restraining order or a civil forfeiture restraining order, directs a person holding a prescribed position referred to in section 14(3) or 36H(3) (as the case may be) to take control of property, a reference in subsections (2) to (7) to the trustee is to be read as a reference to the person holding the prescribed position.".
__________________
Part 3—Criminal Organisations Control
Division 1—Amendment of Criminal Organisations Control Act 2012
60Definitions
In section 3(1) of the Criminal Organisations Control Act 2012—
(a)for the definition of applicable offence substitute—
"applicable offence means—
(a)an indictable offence that is punishable by at least 5 years imprisonment; or
(b)an offence against a provision specified in an item of the Schedule, being a provision of the Act specified in the heading to that item; or
Note
See also section 10.
(c)an offence against section 321, 321G or 321M of the Crimes Act 1958 in relation to an offence referred to in paragraph (a) or (b);";
(b)in the definition of member, in paragraph (c), for "displays" substitute "wears or displays";
(c)for the definition of related organisation substitute—
"related organisation means an organisation specified in an application in accordance with section 15(1)(ba) on which the Court has made a declaration that applies to an individual;";
(d)insert the following definitions—
"prohibitive declaration—see section 19(2);
restrictive declaration—see section 19(2A);".
61Section 4 repealed
Section 4 of the Criminal Organisations Control Act 2012 is repealed.
62Meaning of prospective member
In section 8(2)(c) of the Criminal Organisations Control Act 2012, after "wears" insert
"or displays".
63Form and content of application
(1)After section 15(1)(b) of the Criminal Organisations Control Act 2012 insert—
"(ba)in the case of an application in respect of an individual, identify the organisation that is relevant for the purposes of section 19(3)(a) and (b); and".
(2)After section 15(1) of the Criminal Organisations Control Act 2012 insert—
"(1A)An application in respect of an organisation does not need to state whether a prohibitive declaration or a restrictive declaration is sought.".
(3)In section 15(2) of the Criminal Organisations Control Act 2012—
(a)for "In the case of an application in respect of an organisation, the" substitute "An";
(b)for "the application" substitute
"an application".
64Objection to application for declaration
In section 17(2)(b) of the Criminal Organisations Control Act 2012, for "section 15(2)" substitute "section 15(4)".
65Court may make declarations
(1)For section 19(2) of the Criminal Organisations Control Act 2012 substitute—
"(2)The Court may make a declaration under subsection (1)(a) (a prohibitive declaration) if—
(a)the Court is satisfied beyond reasonable doubt that the matters set out in subsection (2B) apply to the organisation; and
(b)the Court is satisfied on the balance of probabilities that the activities of the organisation pose a serious threat to public safety and order.
(2A)The Court may make a declaration under subsection (1)(a) (a restrictive declaration) if the Court is satisfied on the balance of probabilities that—
(a)the matters set out in subsection (2B) apply to the organisation; and
(b)the activities of the organisation pose a serious threat to public safety and order.
(2B)For the purposes of subsection (2)(a) and (2A)(a), the matters that apply to an organisation are, as the case requires—
(a)the organisation—
(i)has engaged in, organised, facilitated or supported serious criminal activity; or
(ii)is engaging in, organising, facilitating or supporting serious criminal activity; or
(b)any 2 or more members, former members or prospective members of the organisation have used or are using—
(i)the organisation; or
(ii)their relationship with that organisation or with that organisation's members, former members or prospective members—
for a criminal purpose; or
(c)any 2 or more members or prospective members of the organisation are also members, former members or prospective members of an organisation to which a control order applies; or
(d)control orders apply to any 2 or more members or prospective members of the organisation.
(2C)The Court may also make a prohibitive declaration or a restrictive declaration if the organisation gives its consent to the declaration being made.
Note
Section 135A specifies how consent is to be given.".
(2)In section 19(3) of the Criminal Organisations Control Act 2012—
(a)after "satisfied" insert "on the balance of probabilities";
(b)in paragraph (a), for "an organisation" substitute "the organisation identified in the application for the declaration in accordance with section 15(1)(ba)".
(3)After section 19(3) of the Criminal Organisations Control Act 2012 insert—
"(3A)The Court may also make a declaration under subsection (1)(b) if the individual gives his or her consent to the declaration being made.
Note
Section 135A specifies how consent is to be given.".
(4)In section 19(4) of the Criminal Organisations Control Act 2012, for "(2)" substitute
"(2), (2A)".
(5)In section 19(5) of the Criminal Organisations Control Act 2012—
(a)for "subsections (2)(a)(ii)" substitute "subsections (2B)(b)";
(b)in paragraph (f)(i), after "wearing" insert "or displaying".
(6)In section 19(6) of the Criminal Organisations Control Act 2012, for "subsections (2)(a)(ii)" substitute "subsections (2A)(b)".
(7)After section 19(6) of the Criminal Organisations Control Act 2012 insert—
"(7)In making a declaration by consent in accordance with subsection (2C) or (3A), the Court is not required to consider the matters set out in subsections (2), (2A) and (3).".
66New section 21 substituted
For section 21 of the Criminal Organisations Control Act 2012 substitute—
"21 Objections to be disregarded if respondent consents to declaration
The Court must disregard any objection made under section 17 in making a declaration if the respondent gives consent to the declaration being made.
Note
Section 135A specifies how consent is to be given.".
67Form of declaration
After section 22(a) of the Criminal Organisations Control Act 2012 insert—
"(ab)if the declaration applies to an organisation, whether it is a prohibitive declaration or a restrictive declaration; and".
68Duration of declaration
In section 24(1) of the Criminal Organisations Control Act 2012, after "section 29" insert "or 29A".
69Application for revocation of declaration
For section 27(3) of the Criminal Organisations Control Act 2012 substitute—
"(3)The Court may grant leave to apply under subsection (2) if—
(a)the Chief Commissioner files with the Court a notice, signed by the Chief Commissioner, stating that the Chief Commissioner supports the granting of leave; or
(b)the Court is satisfied that there has been a substantial change in circumstances since the declaration that applies to the organisation or individual was made.".
70Section 29 substituted
For section 29 of the Criminal Organisations Control Act 2012 substitute—
"29 Determination of application for revocation of declaration in respect of organisation
(1)The Court may, in accordance with this section, revoke a declaration in respect of an organisation on an application under section 27.
(2)The Court may revoke a prohibitive declaration made on the basis that the Court was satisfied of the matters set out in section 19(2) if the Court is—
(a)no longer satisfied beyond reasonable doubt that the matters set out in section 19(2B) apply to the declared organisation; or
(b)no longer satisfied on the balance of probabilities that the activities of the declared organisation pose a serious threat to public safety and order.
(3)The Court may revoke a restrictive declaration made on the basis that the Court was satisfied of the matters set out in section 19(2A) if the Court is no longer satisfied on the balance of probabilities that both—
(a)the matters set out in section 19(2B) apply to the declared organisation; and
(b)the activities of the declared organisation pose a serious threat to public safety and order.
(4)The Court may revoke a prohibitive declaration made by consent in accordance with section 19(2C) if the Court—
(a)is not satisfied beyond reasonable doubt that the matters set out in section 19(2B) apply to the declared organisation; or
(b)is not satisfied on the balance of probabilities that the activities of the declared organisation pose a serious threat to public safety and order.
(5)The Court may revoke a restrictive declaration made by consent in accordance with section 19(2C) if the Court is not satisfied on the balance of probabilities that both—
(a)the matters set out in section 19(2B) apply to the declared organisation; and
(b)the activities of the declared organisation pose a serious threat to public safety and order.
(6)The Court may revoke a declaration in respect of an organisation if the respondent gives consent to the revocation.
Note
Section 135A specifies how consent is to be given.".
71New section 29A inserted
After section 29 of the Criminal Organisations Control Act 2012 insert—
"29A Determination of application for revocation of declaration in respect of individual
(1)The Court may, in accordance with this section, revoke a declaration in respect of an individual on an application under section 27.
(2)The Court may revoke a declaration that was made on the basis that the Court was satisfied of the matters set out in section 19(3) if the Court is no longer satisfied of those matters on the balance of probabilities.
(3)The Court may revoke a declaration that was made by consent in accordance with section 19(3A) if the Court is not satisfied of the matters set out in section 19(3) on the balance of probabilities.
(4)The Court may revoke a declaration if the respondent gives consent to the revocation.
Note
Section 135A specifies how consent is to be given.".
72When revocation of declaration takes effect
In section 30(1) of the Criminal Organisations Control Act 2012, after "section 29" insert "or 29A".
73Court may make control order
(1)For section 43(1) of the Criminal Organisations Control Act 2012 substitute—
"(1)The Court may make a control order that applies to an organisation if the organisation is a declared organisation and the Court is satisfied that—
(a)if the declaration which applies to the organisation is a prohibitive declaration—the making of the control order is likely to contribute to the purpose of preventing or disrupting serious criminal activity by—
(i)the organisation; or
(ii)any members, former members or prospective members of the organisation; or
(b)if the declaration which applies to the organisation is a restrictive declaration—it is necessary or desirable to restrict, or to impose conditions on, the activities of—
(i)the organisation; or
(ii)any members, former members or prospective members of the organisation—
in order to end, prevent or reduce a serious threat to public safety and order.".
(2)After section 43(1) of the Criminal Organisations Control Act 2012 insert—
"(1A)The Court may also make a control order that applies to an organisation if—
(a)the organisation is a declared organisation; and
(b)the organisation gives its consent to the control order being made.
Note
Section 135A specifies how consent is to be given.".
(3)For section 43(2) of the Criminal Organisations Control Act 2012 substitute—
"(2)The Court may make a control order that applies to an individual if the Court is satisfied that—
(a)the individual is a member, former member or prospective member of an organisation that is subject to a declaration; and
(b)either—
(i)if the declaration is a prohibitive declaration—the making of the control order is likely to contribute to the purpose of preventing or disrupting—
(A)serious criminal activity by the individual; or
(B)serious criminal activity by any other person that is being or may be facilitated by the individual; or
(ii)if the declaration is a restrictive declaration—it is necessary or desirable to restrict, or to impose conditions on, the activities of the individual in order to end, prevent or reduce a serious threat to public safety and order.".
(4)After section 43(2) of the Criminal Organisations Control Act 2012 insert—
"(2A)The Court may make a control order that applies to an individual if—
(a)the individual is a declared individual; and
(b)the Court is satisfied that it is necessary or desirable to restrict, or to impose conditions on, the activities of the individual in order to end, prevent or reduce a serious threat to public safety and order.
(2B)The Court may also make a control order that applies to an individual if—
(a)either—
(i)the Court is satisfied that the individual is a declared organisation member; or
(ii)the individual is a declared individual; and
(b)the individual gives his or her consent to the control order being made.
Note
Section 135A specifies how consent is to be given.".
(5)After section 43(4) of the Criminal Organisations Control Act 2012 insert—
"(5)In making a control order by consent in accordance with subsection (1A) or (2B), the Court is not required to consider the matters set out in subsections (1), (2) and (2A).".
74Content of control orders—declared organisations
(1)In section 45(2) of the Criminal Organisations Control Act 2012—
(a)paragraph (a) is repealed;
(b)in paragraph (b)—
(i)after "prohibit" insert "certain";
(ii)after "declared organisation" insert "(or certain classes of members, former members or prospective members)";
(c)in paragraph (h), for "owns" substitute "owns,".
(2)After section 45(2) of the Criminal Organisations Control Act 2012 insert—
"(2A)The control order may include a condition that prohibits the organisation from doing any of the following only if the declaration applying to the organisation is a prohibitive declaration—
(a)continuing to operate;
(b)carrying on business;
(c)taking on new members.".
(b)the child notifies him or her that the child objects to the forwarding of copies of the report.
(3)If because of subsection (2) the author of a report is not required to send a copy of the report to a person, the author may send to that person a copy of part of the report.
(4)If because of subsection (2) the author of a report does not send copies of the report in accordance with subsection (1)(a) or (c)—
(a)the author must inform the registrar referred to in section 38ZU(a), the prothonotary of the Supreme Court or the registrar of the County Court (as the case requires) of that fact; and
(b)the Children's Court, the Trial Division of the Supreme Court or the County Court (as the case requires) may by order direct the registrar or prothonotary to forward a copy of the report, or a specified part of the report, together with a copy of the order, to a person named or described in the order as soon as possible and before the hearing.
38ZWVictim impact statements
(1)Before a court makes a supervision order under section 38ZH or varies or revokes a supervision order under section 38ZO or 38ZP, a victim of the offence may make a victim impact statement to the court for the purpose of assisting the court in determining any conditions it may impose on the supervision order.
(2)Sections 359, 359A and 359B of the Children, Youth and Families Act 2005 apply to victim impact statements under this section.
__________________".
126Principle to be applied
At the end of section 39 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert—
"(2)In subsection (1), supervision order includes an order made under section 38ZH.".
127Matters to which the court is to have regard
In section 40(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "Part 3, 4 or 5" substitute "Part 3, 4, 5 or 5A".
128Certificate of available services
(1)After section 47(1)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert—
"(ab)imposing a supervision order on a child—
(i)committing the child to custody in a youth justice centre or a youth residential centre; or
(ii)providing for the child to receive services in a youth justice centre or a youth residential centre or from a disability services provider or the Secretary to the Department of Human Services; or".
(2)In section 47(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997—
(a)in subparagraph (ii), for "Human Services." substitute "Human Services; or";
(b)after subparagraph (ii) insert—
"(iii)that a child be placed in custody in a youth justice centre or a youth residential centre.".
(3)After section 47(1A)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert—
"(ab)imposing a supervision order on a child providing for the child to receive services from a mental health service provider within the meaning of the Mental Health Act 2014; or".
129Inadmissibility of evidence in other proceedings
In section 76(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, in the definition of hearing—
(a)in paragraph (a), after "investigation" insert "under Part 2 or Division 2 of Part 5A"; and
(b)in paragraph (b), after "hearing" insert "under Part 3 or Division 3 of Part 5A".
130Extension of time for filing notice of appeal
(1)In section 76C(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after "Act" insert "(other than Part 5A)".
(2)After section 76C(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert—
"(3)The County Court or the Trial Division of the Supreme Court at any time may extend the time within which a notice of appeal may be filed under Part 5A.".
131Transitional provision inserted
At the end of Schedule 3 to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert—
"15 Transitional provision—Criminal Organisations Control and Other Acts Amendment Act 2014
This Act as amended by Division 1 of Part 5 of the Criminal Organisations Control and Other Acts Amendment Act 2014 applies to—
(a)a proceeding for an offence that is commenced on or after the commencement of Division 1 of Part 5 of that Act; and
(b)a proceeding for an offence that, on the commencement of Division 1 of Part 5 of that Act, is before the Children's Court, irrespective of when the proceeding was commenced.".
Division 2—Amendment of Children, Youth and Families Act 2005
132Release on parole from youth residential centre
After section 454(7) of the Children, Youth and Families Act 2005 insert—
"(8)This section does not apply to a person detained in a youth residential centre in accordance with a custodial supervision order under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.".
133Release on parole from youth justice centre
After section 458(7) of the Children, Youth and Families Act 2005 insert—
"(8)This section does not apply to a person detained in a youth justice centre in accordance with a custodial supervision order under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.".
134Jurisdiction of Youth Residential Board
At the end of section 462 of the Children, Youth and Families Act 2005 insert—
"(2)This section does not apply to a child detained in a youth residential centre in accordance with a custodial supervision order under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.".
135Jurisdiction of Youth Parole Board
At the end of section 463 of the Children, Youth and Families Act 2005 insert—
"(2)This section does not apply to a person detained in a youth justice centre in accordance with a custodial supervision order under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.".
136Governor in Council may establish corrective services
In section 478(b) and (c) of the Children, Youth and Families Act 2005, for "this Act or the Sentencing Act 1991" substitute "this Act, the Sentencing Act 1991 or the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997".
137Children in detention
In section 482A of the Children, Youth and Families Act 2005, in the definition of detainee, after "including" insert "a person detained under an order made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and".
138Proceedings in which child is required to be legally represented
After section 525(2)(b) of the Children, Youth and Families Act 2005 insert—
"(ba)proceeding or investigation under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;".
139Duties of youth justice officers
(1)In section 544(1)(a) of the Children, Youth and Families Act 2005, after "572" insert "or a report prepared under Division 6 of Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997".
(2)In section 544(4) of the Children, Youth and Families Act 2005, after "charged" insert "or is declared liable to supervision under Division 5 of Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997".
Division 3—Consequential and other amendments
140Accident Towing Services Act 2007
In section 3(2)(c) of the Accident Towing Services Act 2007—
(a)in subparagraph (i), after "17(1)(b)" insert "or 38X(1)(b)";
(b)in subparagraph (ii), after "17(1)(c)" insert "or 38X(1)(c)".
141Appeal Costs Act 1998
(1)In section 14(4)(a) of the Appeal Costs Act 1998, after "17(1)(c)" insert "or 38X(1)(c)".
(2)After section 18(a) of the Appeal Costs Act 1998 insert—
"(ab)an appeal to the County Court or the Trial Division of the Supreme Court—
(i)against a finding under section 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or
(ii)under section 38U, 38ZE or 38ZF of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or".
(3)In section 18(b) of the Appeal Costs Act 1998, after "Part 2" insert "or Division 2 of Part 5A".
(4)In section 18(c) of the Appeal Costs Act 1998, after "Part 3" insert "or Division 3 of Part 5A".
142Bus Safety Act 2009
In section 3(3)(d) of the Bus Safety Act 2009—
(a)in subparagraph (i), after "17(1)(b)" insert "or 38X(1)(b)";
(b)in subparagraph (iii), after "17(1)(c)" insert "or 38X(1)(c)".
143Coroners Act 2008
In section 4(2)(f) of the Coroners Act 2008, after "section 26" insert "or 38ZH".
144Corrections Act 1986
In section 3(1) of the Corrections Act 1986, in the definition of correctional order, in paragraph (f) after "under" insert "section 26 or 38ZH of".
145Criminal Organisations Control Act 2012
In section 5(3) of the Criminal Organisations Control Act 2012, after "17(1)(c)" insert
"or 38X(1)(c)".
146Disability Act 2006
In section 152(2)(c) of the Disability Act 2006, after "under" insert "section 26 or 38ZH of".
147Firearms Act 1996
In section 3(1) of the Firearms Act 1996, in the definition of prohibited person, in paragraph (c)(iii), after "section 26" insert "or 38ZH".
148Juries Act 2000
In Schedule 2 to the Juries Act 2000, in clause 3(e) after "under" insert "section 26 or 38ZH of".
149Legal Aid Act 1978
In section 24(2A) of the Legal Aid Act 1978, after "Part 5" insert "or 5A".
150Mental Health Act 2014
(1)In section 276(2)(a) of the Mental Health Act 2014, after "that Act" insert ", other than an order made under Part 5A of that Act".
(2)After section 276(2) of the Mental Health Act 2014 insert—
"(3)Subsection (1) applies to a person who is detained in a youth justice centre or a youth residential centre under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (whether on remand or under a supervision order made under Part 5A of that Act).".
(3)In section 305(1) of the Mental Health Act 2014, in the definition of forensic patient, in paragraphs (a) and (b), after "1997" insert "(other than under Part 5A of that Act)".
151Police Regulation Act 1958
In section 3(4)(b) of the Police Regulation Act 1958—
(a)in subparagraph (i), after "17(1)(b)" insert "or 38X(1)(b)";
(b)in subparagraph (ii), after "17(1)(c)" insert "or 38X(1)(c)".
152Sex Offenders Registration Act 2004
(1)In section 3 of the Sex Offenders Registration Act 2004—
(a)in the definition of existing controlled registrable offender, in paragraphs (c) and (g), for "within the meaning of" substitute "made under section 26 of";
(b)in the definition of government custody, in paragraph (a)(iii) and (iv), for "within the meaning of" substitute "made under section 26 of";
(c)in the definition of sentence, after paragraph (ab) insert—
"(aba)a declaration under section 38Y(4)(a) or 38ZD(1)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 that the child is liable to supervision under Division 5 of Part 5A of that Act; and";
(d)in the definition of sentence, in paragraph (ac) for "18(4)(b) or 23(b)" substitute "18(4)(b), 23(b), 38Y(4)(b) or 38ZD(1)(b)";
(e)in the definition of supervised sentence, in paragraph (d), for "within the meaning of" substitute "made under section 26(2)(b) or 38ZH(5)(b) of".
(2)In section 4(1)(d) of the Sex Offenders Registration Act 2004—
(a)after "section 17(1)(b) or (c)" insert
"or section 38X(1)(b) or (c)";
(b)after "section 17(1)(c)" insert
"or 38X(1)(c)".
153Transport (Compliance and Miscellaneous) Act 1983
(1)In section 130A(2)(d) of the Transport (Compliance and Miscellaneous) Act 1983—
(a)in subparagraph (i), after "17(1)(b)" insert "or 38X(1)(b)";
(b)in subparagraph (ii), after "17(1)(c)" insert "or 38X(1)(c)".
(2)In section 163(1)(d) of the Transport (Compliance and Miscellaneous) Act 1983—
(a)in subparagraph (i), after "17(1)(b)" insert "or 38X(1)(b)";
(b)in subparagraph (ii), after "17(1)(c)" insert "or 38X(1)(c)".
154Working with Children Act 2005
(1)In section 4(1)(d) of the Working with Children Act 2005—
(a)after "section 17(1)(b) or 17(1)(c)" insert
"or under section 38X(1)(b) or 38X(1)(c)";
(b)after "section 17(1)(c)" insert
"or 38X(1)(c)";
(c)for "Victoria." substitute "Victoria;".
(2)After section 4(1)(d) of the Working with Children Act 2005 insert—
"(e)a verdict of not guilty on account of insanity in relation to the offence returned under—
(i)section 420 of the Crimes Act 1958 (as then in force); or
(ii)an equivalent provision of the laws of a jurisdiction other than Victoria—
before the day on which Schedule 3 to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 came into operation.".
155Amendment consequential on Victoria Police Act 2013
(1)In section 38H of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for the definition of Chief Commissioner of Police substitute—
"Chief Commissioner of Police means the Chief Commissioner of Police appointed under section 17 of the Victoria Police Act 2013;".
(2)For section 38ZL(6)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 substitute—
"(b)a police officer; or".
__________________
Part 6—Major Crime Investigative Powers
156Purposes of Major Crime (Investigative Powers) Act 2004
In section 1 of the Major Crime (Investigative Powers) Act 2004—
(a)in paragraph (a), after "investigate" insert "and prosecute";
(b)for paragraph (b) substitute—
"(b)to combat and reduce the incidence of organised crime offences.".
157Definition
Insert the following definition in section 3 of the Major Crime (Investigative Powers) Act 2004—
"restricted evidence means any evidence, information or thing that is the subject of a direction that is in force under section 43(1);".
158Confidentiality of witness summons and orders
(1)For section 20(2) and (3) of the Major Crime (Investigative Powers) Act 2004 substitute—
"(2)The Supreme Court or the Chief Examiner must give a notice under subsection (1) if satisfied that failure to do so—
(a)would reasonably be expected to prejudice—
(i)the safety of a person; or
(ii)the fair trial of a person who has been or may be charged with an offence; or
(iii)the effectiveness of an investigation of the organised crime offence in relation to which the summons was issued or the order was made; or
(b)would otherwise be contrary to the public interest.
(3)The Supreme Court or the Chief Examiner may give a notice under subsection (1) if satisfied that failure to do so—
(a)might prejudice the effectiveness of an investigation of the organised crime offence in relation to which the summons was issued or the order was made; or
(b)might otherwise be contrary to the public interest.".
159When Chief Examiner may conduct an examination
In section 29(2) of the Major Crime (Investigative Powers) Act 2004—
(a)after "proceedings" insert "(whether civil or criminal)";
(b)after "the examination" insert ", including criminal proceedings against the person in respect of that subject-matter".
160Preliminary requirements
For section 31(2) of the Major Crime (Investigative Powers) Act 2004 substitute—
"(2)If a witness attends an examination solely to produce documents on behalf of a body corporate—
(a)subsection (1) does not apply if the witness elects to produce the documents without the requirements of that subsection having been complied with; or
(b)if the witness does not so elect, the Chief Examiner is only required to comply with subsection (1)(d), (e), (f) and (g) in relation to the witness.".
161Failure of witnesses to attend and answer questions
In section 37(2) of the Major Crime (Investigative Powers) Act 2004—
(a)after "must not" insert ", without reasonable excuse";
(b)in paragraph (b) omit "without reasonable excuse,".
162Privilege against self-incrimination abrogated
(1)After section 39(1) of the Major Crime (Investigative Powers) Act 2004 insert—
"(1A)Subsection (1) applies whether or not the person has been or may be charged with an offence in respect of the subject-matter of the question, information, document or other thing.".
(2)After section 39(3) of the Major Crime (Investigative Powers) Act 2004 insert—
"(4)Nothing in subsection (3) prevents the admission in a criminal proceeding or proceeding for the imposition of a penalty of any evidence obtained as a direct or indirect consequence of an answer given at an examination or a document or other thing produced at an examination or in answer to a witness summons, and any such evidence is admissible in the proceeding in accordance with the rules of evidence applicable to the proceeding.".
163Restriction on publication of evidence
(1)For section 43(2) of the Major Crime (Investigative Powers) Act 2004 substitute—
"(2)The Chief Examiner must give a direction under subsection (1) if satisfied that failure to do so would reasonably be expected to prejudice—
(a)the safety of a person; or
(b)the fair trial of a person who has been or may be charged with an offence.
(2A)To avoid doubt, a reference in subsection (2)(a) or (b) to a person includes a person who has given, or may be about to give, evidence before the Chief Examiner or produced, or may be about to produce, a document or other thing to the Chief Examiner.".
(2)For section 43(4) of the Major Crime (Investigative Powers) Act 2004 substitute—
"(4)If a person is charged with an offence against this Act, nothing in this section or section 43A prevents restricted evidence from being published or communicated by the Chief Examiner or the Chief Commissioner to the court or to the person charged or a legal practitioner representing the person charged.".
(3)Section 43(4A) and (5) of the Major Crime (Investigative Powers) Act 2004 are repealed.
164New sections 43A and 43B inserted
After section 43 of the Major Crime (Investigative Powers) Act 2004 insert—
"43A Release of restricted evidence to a person charged with an offence
(1)If a court considers that it may be desirable in the interests of justice that restricted evidence be made available to a person charged with an offence before the court, or to a legal practitioner representing a person charged, the court, on the application of the Chief Commissioner, the Director of Public Prosecutions or the person charged, may give the Chief Examiner or the Chief Commissioner a certificate to that effect.
(2)If the court gives a certificate under subsection (1), the Chief Examiner or the Chief Commissioner (as the case requires) must make the restricted evidence available to the court.
(3)If restricted evidence is made available to a court under subsection (2), the court must give each person referred to in subsection (4) an opportunity to make submissions to the court as to whether or not the restricted evidence should be made available, in whole or part, to the person charged or a legal practitioner representing the person charged.
(4)For the purposes of subsection (3), the persons are—
(a)the Chief Examiner; and
(b)the Chief Commissioner; and
(c)if the direction under section 43(1) in relation to the restricted evidence involves the interests of a witness, the witness.
(5)The court may make the restricted evidence available to the person charged or a legal practitioner representing the person charged, and to the Director of Public Prosecutions, if, after examining the restricted evidence and considering any submissions made under subsection (3), the court is satisfied that the interests of justice so require.
43BRelease of restricted evidence where person not yet charged
(1)The Chief Commissioner may apply to a court for an order that restricted evidence be made available to the Director of Public Prosecutions for the purpose of prosecuting a person for an offence if the Chief Commissioner suspects on reasonable grounds that there are reasonable prospects for the conviction of a person for an offence if the evidence is made so available.
(2)On an application under subsection (1), the court may direct the Chief Examiner or the Chief Commissioner to make the restricted evidence available to the court.
(3)If the court gives a direction under subsection (2), the Chief Examiner or the Chief Commissioner (as the case requires) must make the restricted evidence available to the court.
(4)If restricted evidence is made available to the court under subsection (3), the court must give each person referred to in subsection (5) an opportunity to make submissions to the court as to whether or not the restricted evidence should be made available, in whole or part, to the Director of Public Prosecutions for the purpose of prosecuting a person for an offence.
(5)For the purposes of subsection (4), the persons are—
(a)the Chief Examiner; and
(b)the Chief Commissioner; and
(c)the Director of Public Prosecutions; and
(d)if the direction under section 43(1) in relation to the restricted evidence involves the interests of a witness, the witness.
(6)The court may, by order, make the restricted evidence available to the Director of Public Prosecutions for the purpose of prosecuting a person for an offence if, after examining the restricted evidence and considering any submissions made under subsection (4), the court is satisfied that—
(a)there are reasonable grounds for the suspicion founding the application for the order; and
(b)the interests of justice require the evidence to be made so available.
(7)If restricted evidence is made available to the Director of Public Prosecutions under this section and a person is subsequently charged with an offence as a result, nothing in this Act prevents the Director of Public Prosecutions from making the evidence available to the person charged or a legal practitioner representing the person charged.
(8)In this section—
court means the Supreme Court or the County Court.".
165Warrant for arrest of witness
(1)For section 46(5) of the Major Crime (Investigative Powers) Act 2004 substitute—
"(5)A person arrested under the warrant must be brought, as soon as practicable, before the Court and the Court may—
(a)discharge the person from custody on bail in accordance with the Bail Act 1977 as if the person had been accused of an offence; or
(b)order the continued detention of the person in a prison or police gaol for the purpose of ensuring the person's appearance as a witness before the Chief Examiner until the person has concluded giving evidence; or
(c)order that the person be discharged from custody unconditionally.".
(2)In section 46 of the Major Crime (Investigative Powers) Act 2004—
(a)subsection (7) is repealed;
(b)in subsection (8)—
(i)after "prison" insert "or police gaol";
(ii)for "subsection (5)(c)" substitute "subsection (5)(b)".
166Contempt of Chief Examiner—removal of sunset
Sections 49(12) and 50(2) of the Major Crime (Investigative Powers) Act 2004 are repealed.
167Delegation
After section 65(1) of the Major Crime (Investigative Powers) Act 2004 insert—
"(1A)The Chief Commissioner may, by instrument, delegate to a police officer of or above the rank of inspector a power of the Chief Commissioner under section 43B.".
168Amendment of Criminal Procedure Act 2009
In the Criminal Procedure Act 2009—
(a)after section 110(d)(v) insert—
"(va)if a person has been examined under Part 4 of the Major Crime (Investigative Powers) Act 2004 and the informant intends to tender a record of that examination at the committal hearing, a transcript of the recording of the examination; and";
(b)in section 113(1), after "Part 8.2" insert
"or of an examination under Part 4 of the Major Crime (Investigative Powers) Act 2004".
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Part 7—Variation of Alcohol Exclusion orders
169Variation of alcohol exclusion orders
(1)After section 89DD(4) of the Sentencing Act 1991 insert—
"(5)When making an alcohol exclusion order, the Supreme Court may direct that any application for the variation of that order is to be made to the Magistrates' Court for determination.".
(2)For section 89DG(2) of the Sentencing Act 1991 substitute—
"(2)An application under subsection (1) must be made to the Magistrates' Court if—
(a)the order was made by the County Court or the Magistrates' Court; or
(b)the order was made by the Supreme Court and the Supreme Court has given a direction under section 89DD(5).".
(2A)For the purposes of subsection (2), the order made by the Supreme Court or County Court must be taken to have been made by the Magistrates' Court.
(2B)An application under subsection (1) must be made to the Supreme Court if—
(a)the order was made by the Supreme Court; and
(b)the Supreme Court has not given a direction under section 89DD(5).".
(3)After section 89DG(5) of the Sentencing Act 1991 insert—
"(6)An order of the Supreme Court or County Court that is varied by the Magistrates' Court under this section is taken for the purposes of enforcement to be an order of the Magistrates' Court.".
170New section 153 inserted
At the end of Part 12 of the Sentencing Act 1991 insert—
"153 Transitional provision—Criminal Organisations Control and Other Acts Amendment Act 2014—alcohol exclusion orders
The amendments made to this Act by Part 7 of the Criminal Organisations Control and Other Acts Amendment Act 2014 apply to the sentencing of a person on or after the commencement of that Part, irrespective of when the offence was committed or the conviction was recorded.".
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Part 8—Miscellaneous Amendments
Division 1—Amendment of Criminal Procedure Act 2009
171Schedule 3 amended
In Schedule 3 to the Criminal Procedure Act 2009, after item 23 insert—
"24A general inspector within the meaning of the Prevention of Cruelty to Animals Act 1986.
24AA specialist inspector within the meaning of the Prevention of Cruelty to Animals Act 1986.".
Division 2—Amendment of Evidence (Miscellaneous Provisions) Act 1958
172List of persons who may witness statutory declarations
In section 107A(1) of the Evidence (Miscellaneous Provisions) Act 1958—
(a)for paragraph (e) substitute—
"(e)the prothonotary or a deputy prothonotary of the Supreme Court, the registrar or a deputy registrar of the County Court, the principal registrar or a registrar or deputy registrar of the Magistrates' Court or the principal registrar or a registrar or deputy registrar of the Children's Court;";
(b)for paragraph (r) substitute—
"(r)a registered veterinary practitioner within the meaning of the Veterinary Practice Act 1997;";
(c)for paragraph (t) substitute—
"(t)a principal within the meaning of the Education and Training Reform Act 2006;";
(d)for paragraph (v) substitute—
"(v)a person who holds a prescribed membership of a prescribed accounting body or association;".
173Affidavits in Victoria how sworn and taken
For section 123C(1)(d) of the Evidence (Miscellaneous Provisions) Act 1958 substitute—
"(d)the prothonotary or a deputy prothonotary of the Supreme Court, the registrar or a deputy registrar of the County Court, the principal registrar or a registrar or deputy registrar of the Magistrates' Court or the principal registrar or a registrar or deputy registrar of the Children's Court;".
Division 3—Amendment of Mental Health Act 2014
174Definitions
In section 3(1) of the Mental Health Act 2014
insert the following definitions—
"designated place has the same meaning as in section 3(1) of the Victoria Police Act 2013;
protective services officer has the same meaning as in section 3(1) of the Victoria Police Act 2013;".
175Apprehension of person by police officer or protective services officer
(1)In the heading to section 351 of the Mental Health Act 2014, after "police" insert "officer or protective services officer".
(2)In section 351(1) of the Mental Health Act 2014, for "A police officer may apprehend a person if the police officer" substitute "A police officer, or a protective services officer on duty at a designated place, may apprehend a person if the police officer or the protective services officer".
(3)In section 351(2) and (3) of the Mental Health Act 2014, after "police officer" insert "or a protective services officer".
(4)In section 351(4) of the Mental Health Act 2014, after "police officer" insert "or the protective services officer, as the case may be,".
(5)After section 351(4) of the Mental Health Act 2014 insert—
"(4A)As soon as practicable after apprehending a person under this section, a protective services officer must—
(a)hand the person into the custody of a police officer; or
(b)for the purposes of enabling the person to be examined in accordance with section 30, arrange for the person to be taken to—
(i)a registered medical practitioner or mental health practitioner; or
(ii)a public hospital, denominational hospital, privately-operated hospital or public health service within the meaning of the Health Services Act 1988.".
(6)In section 351(5) of the Mental Health Act 2014, after "this section" insert "or being handed a person apprehended by a protective services officer under subsection (4A)(a)".
(7)After section 351(5) of the Mental Health Act 2014 insert—
"(5A)A person apprehended under this section by a protective services officer is released from the custody of the protective services officer when—
(a)the person enters into the custody of a police officer; or
(b)if subsection (4A)(b)(i) applies, the person is made subject to an Assessment Order; or
(c)if subsection (4A)(b)(ii) applies, the person enters into the care of the public hospital, denominational hospital, privately-operated hospital or public health service within the meaning of the Health Services Act 1988.".
(8)In section 351(7) and (8)(b) of the Mental Health Act 2014, after "police officer" insert "or a protective services officer".
Division 4—Amendment of Open Courts Act 2013
176Notice of applications for suppression orders
For section 10(1)(b) of the Open Courts Act 2013 substitute—
"(b)the parties on the record in the proceeding to which the application relates.".
177Magistrates' Court may make order prohibiting publication of specified material
For section 26(1) of the Open Courts Act 2013 substitute—
"(1)The Magistrates' Court may make an order prohibiting the publication of any specified material, or any material of a specified kind, relevant to a proceeding that is pending in the Court if the Court is satisfied that—
(a)the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means; or
(b)the order is necessary in order to protect the safety of any person.".
Division 5—Amendment of Personal Safety Intervention Orders Act 2010
178New section 16A inserted
After section 16 of the Personal Safety Intervention Orders Act 2010 insert—
"16A Registrar must refuse to accept application
(1)If an application for a personal safety intervention order is made to the Magistrates' Court, a registrar must refuse to accept the application for filing if the registrar is satisfied that—
(a)the application is frivolous, vexatious, without substance, made in bad faith, has no reasonable prospect of success or is an abuse of process; or
(b)the matter would be more appropriately dealt with by mediation.
(2)Subsection (1) does not apply to an application for a personal safety intervention order made by a police officer or an application for a variation, revocation or extension of a personal safety intervention order.
(3)In determining whether to refuse to accept the application, the registrar must consider—
(a)whether the matter has been assessed for mediation or has been the subject of attempted mediation, and the outcome of the assessment or mediation; and
(b)whether the applicant has made a report of the matter to police; and
(c)whether the matter is inappropriate for mediation, having regard to any guidelines issued under subsection (4); and
(d)any other relevant matter.
(4)The Attorney-General may issue guidelines relating to matters to which registrars must have regard in determining whether to refuse to accept an application.
(5)Any guidelines issued under this section must be published on the Internet site of the Department of Justice.
(6)On the application of a person whose application has been refused under subsection (1), the Magistrates' Court may direct the registrar to accept the application for filing.".
Division 6—Amendment of Summary Offences Act 1966
179Requirement to give name and address
(1)In section 6B(1) of the Summary Offences Act 1966, before "who intends" insert "or a protective services officer".
(2)In section 6B(2) of the Summary Offences Act 1966—
(a)before "who makes" insert "or a protective services officer";
(b)before "intention" insert "or the protective services officer's".
(3)In section 6B(3) of the Summary Offences Act 1966, before "in accordance" insert "or a protective services officer".
(4)In section 6B(4) of the Summary Offences Act 1966—
(a)before "who made" insert "or the protective services officer";
(b)before "name" insert "or the protective services officer's".
(5)In section 6B(5) of the Summary Offences Act 1966—
(a)before "must not" insert "or a protective services officer";
(b)in paragraph (c), for "duty." substitute "duty; or";
(c)after paragraph (c) insert—
"(d)in the case of a protective services officer, state as the protective services officer's place of duty a location other than the police station or location of deployment of the protective services officer.".
(6)In section 6B(6) of the Summary Offences Act 1966—
(a)before "who made" insert "or the protective services officer";
(b)before "may request" insert "or the protective services officer".
(7)In section 6B(8) of the Summary Offences Act 1966, before "who made" insert "or the protective services officer".
Division 7—Amendment of Victorian Institute of Forensic Medicine Act 1985
180The Council
In section 67(2) of the Victorian Institute of Forensic Medicine Act 1985—
(a)in paragraph (k), for "Victoria." substitute "Victoria; and"; and
(b)after paragraph (k) insert—
"(l)one other person who has knowledge of, or experience in, accountancy or financial management.".
181Members of the Council
After section 69(1) of the Victorian Institute of Forensic Medicine Act 1985 insert—
"(1A)A member of the Council referred to in section 67(2)(l) is to be appointed on the recommendation of the Attorney-General after receiving advice from the Chairperson.".
Division 8—Amendments relating to Victoria Police
182Promotion of police officers and protective services officers
In sections 31(1) and 40(1) of the Victoria Police Act 2013, after "higher rank" insert "in accordance with this Act and the regulations".
183Unauthorised manufacture etc of Victoria Police identification or equipment
In section 255(3)(c) of the Victoria Police Act 2013 for "Commissioner" substitute "Chief Commissioner".
184Subject matter for regulations
(1)For clause 2.9 of Schedule 5 to the Victoria Police Act 2013 substitute—
"2.9The promotion and transfer of police officers and protective services officers.".
(2)In clause 5.8 of Schedule 5 to the Victoria Police Act 2013, for "handing" substitute "handling".
185Transitional provisions
(1)In clause 37 of Schedule 6 to the Victoria Police Act 2013, for "to be" substitute "to be a".
(2)In clause 39 of Schedule 6 to the Victoria Police Act 2013, for "under this" substitute "person under this".
186Consequential amendment of Corrections Act 1986
In section 78D(4) of the Corrections Act 1986, for "member of the police force" substitute "police officer".
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Part 9—Repeal of Amending Act
187Repeal of amending Act
This Act is repealed on 1 March 2016.
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
Minister's second reading speech—
Legislative Assembly: 26 June 2014
Legislative Council: 7 August 2014
The long title for the Bill for this Act was "A Bill for an Act to amend the Confiscation Act 1997, the Criminal Organisations Control Act 2012, the Criminal Procedure Act 2009, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Major Crime (Investigative Powers) Act 2004 and the Sentencing Act 1991, to make consequential and miscellaneous amendments to other Acts and for other purposes."
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