Untitled document
Major Crime Legislation (Seizure of Assets) Act 2004
Act No. 87/2004
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY
1.Purpose
2.Commencement
3.Principal Act
PART 2—AMENDMENT OF THE CONFISCATION ACT 1997
4.Amendment of purposes
5.Definitions
6.Jurisdiction of County Court
7.Purposes for which a restraining order may be made
8.Application for restraining order
9.Determination of application
10.Application for exclusion from restraining order
11.Determination of exclusion application—restraining order—automatic forfeiture
12.Determination of exclusion application—restraining order—
civil forfeiture13.Repeal
14.Duration of restraining order
15.Application for civil forfeiture order
16.Determination of application for civil forfeiture order
17.Civil forfeiture orders by consent
18.Exclusion orders
19.Pecuniary penalty orders
20.Examination orders
21.Monitoring orders
22.Consequential amendments—categories of offences etc.
23.New section 174 inserted
174.Transitional—Major Crime Legislation (Seizure of Assets) Act 2004
PART 3—CONSEQUENTIAL AMENDMENTS TO OTHER
ACTS
24.Sentencing Act 1991
25.Drugs, Poisons and Controlled Substances Act 1981
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ENDNOTES
Major Crime Legislation (Seizure of Assets) Act 2004
[Assented to 23 November 2004]
The Parliament of Victoria enacts as follows:
PART 1PRELIMINARY—
1.Purpose
The main purpose of this Act is to amend the Confiscation Act 1997—
(a)to re-classify forfeiture offences as Schedule 1 offences and to re-classify automatic forfeiture offences and civil forfeiture offences as Schedule 2 offences;
(b)to provide for the making of a restraining order on suspicion that property is tainted property in relation to a Schedule 2 offence;
(c)to reform the basis on which civil forfeiture orders are made;
(d)to give the Director, Police Integrity, the power to apply for a monitoring order under Part 13 of the Act;
(e)to make consequential and other minor amendments.
2.Commencement
(1)Subject to sub-section (2), this Act comes into operation on a day to be proclaimed.
(2)If this Act does not come into operation before 1 January 2005, it comes into operation on that day.
3.Principal Act
In this Act, the Confiscation Act 1997 is called the Principal Act.
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PART 2—AMENDMENT OF THE CONFISCATION ACT 1997
4.Amendment of purposes
For section 1(c) of the Principal Act substitute—
"(c)to provide for the forfeiture by the Supreme Court or the County Court of property restrained on suspicion that it is tainted property in relation to a Schedule 2 offence;".
5.Definitions
In section 3(1) of the Principal Act—
(a)in paragraph (b) of the definition of "automatic forfeiture", for "automatic forfeiture offence" substitute "Schedule 2 offence";
(b)the definitions of "automatic forfeiture offence", "civil forfeiture offence" and "forfeiture offence" are repealed;
(c)insert the following definitions—
' "Schedule 1 offence" means an offence referred to in Schedule 1 and, in Parts 11 and 13, includes an interstate offence;
"Schedule 2 offence" means an offence referred to in Schedule 2 and—
(a)if circumstances are specified in Schedule 2 in relation to that offence, means an offence committed in those circumstances; and
(b)in Parts 11 and 13, includes an interstate offence;'.
6.Jurisdiction of County Court
(1)In section 12(4) and (5) of the Principal Act, for "forfeiture offence" substitute "Schedule 1 offence".
(2)In section 12(8) of the Principal Act, for "a civil forfeiture order" substitute "an order under Division 2 of Part 8".
7.Purposes for which a restraining order may be made
After section 15(3) of the Principal Act insert—
"(4)If a court makes a restraining order on application under section 16(2)(a) and a person is subsequently charged with a Schedule 2 offence in relation to which the restrained property or interest in property is tainted property, the court may vary the restraining order to add to or substitute the purpose for which the property or interest is restrained.
Note:Section 26 enables the court to make orders varying the property to which the restraining order relates.".
8.Application for restraining order
(1)For section 16(1) and (2) of the Principal Act substitute—
"(1)If a person has been, or within the next 48 hours will be, charged with or has been convicted of a Schedule 1 offence—
(a)the DPP may apply, without notice, to any court; or
(b)an appropriate officer may apply, without notice, to the Magistrates' Court or the Children's Court—
for a restraining order in respect of property in which the defendant has an interest or which is tainted property in relation to that offence.
(2)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 restraining order in respect of property if—
(a)a member of the police force suspects on reasonable grounds that the property is tainted property in relation to a Schedule 2 offence; or
(b)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 Schedule 2 offence; and
(ii)that person has an interest in the property or that the property is tainted property in relation to that offence; or
(c)a person has been charged with a Schedule 2 offence and that person has an interest in the property or the property is tainted property in relation to that offence; or
(d)a person has been convicted of a Schedule 2 offence and that person has an interest in the property or the property is tainted property in relation to that offence.
(2A)An application under sub-section (2) for the purposes of civil forfeiture may only be made in respect of property that is reasonably suspected to be tainted property.".
(2)In section 16(3) of the Principal Act, for "(1)" substitute "(2)".
(3)In section 16(4) of the Principal Act, after "(1)" insert "or (2)(b), (c) or (d)".
(4)After section 16(4) of the Principal Act insert—
"(5)An application under sub-section (2)(a) must be supported by an affidavit of a member of the police force setting out any relevant matters and stating that the member suspects that the property is tainted property in relation to a Schedule 2 offence and setting out the grounds on which the member has that suspicion.".
(5)In section 17(1) of the Principal Act, after "16(1)" insert "or (2)".
9.Determination of application
(1)In section 18 of the Principal Act—
(a)after "16(1)" insert "or (2)(b), (c) or (d)";
(b)for "a forfeiture offence, an automatic forfeiture offence or a civil forfeiture offence" substitute "a Schedule 1 offence or a Schedule 2 offence";
(c)for "the forfeiture offence, automatic forfeiture offence or civil forfeiture offence" substitute "the Schedule 1 offence or Schedule 2 offence".
(2)At the end of section 18 of the Principal Act insert—
"(2)On an application under section 16(2)(a), the court must make a restraining order if it is satisfied that—
(a)the deponent of the affidavit supporting the application does suspect that the property is tainted property in relation to a Schedule 2 offence; and
(b)there are reasonable grounds for that suspicion.".
10.Application for exclusion from restraining order
(1)After section 20(1) of the Principal Act insert—
"(1A)An application under sub-section (1) must be made—
(a)if notice is required to be given under section 19(1), within 30 days after service of notice of the making of the restraining order; or
(b)in any other case, within 30 days after the making of the restraining order.
(1B)The court may extend the period within which an application may be made, whether or not that period has expired, if it is in the interests of justice to do so.".
(2)In section 20(2) of the Principal Act, after "and" (where first occurring) insert ", subject to sub-section (6),".
(3)After section 20(4) of the Principal Act insert—
"(5)If—
(a)a court makes a restraining order against property under section 18 in relation to an offence; and
(b)a person claiming an interest in the property is charged with the offence or a related offence that is a Schedule 1 offence or a Schedule 2 offence—
any statement made or evidence given by the person in support of an application under this section is admissible against that person in a proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person.
(6)If—
(a)a court makes a restraining order against property under section 18 in relation to a Schedule 2 offence; and
(b)a person claiming an interest in the property is charged with the Schedule 2 offence or a related offence that is a Schedule 2 offence; and
(c)that person applies for an order under section 21, 22 or 24—
the person need not give notice of the grounds on which the application is made until the charge against the person is finally determined or is withdrawn.
(7)Any person referred to in sub-section (2) may apply to the court for an order that the hearing of the application for an order under section 21, 22 or 24 be stayed until the charge referred to in sub-section (6)(b) is finally determined or is withdrawn.
Note:Section 26 enables the court to make orders varying the property to which the restraining order relates.".
11.Determination of exclusion application—restraining order—automatic forfeiture[1]
In section 22 of the Principal Act—
(a)for "an automatic forfeiture offence" substitute "a Schedule 2 offence";
(b)for paragraph (a)(ii) substitute—
"(ii)the property is not tainted property; and";
(c)in paragraph (b)(i), for "automatic forfeiture offence" (wherever occurring) substitute "Schedule 2 offence".
12.Determination of exclusion application—restraining order—civil forfeiture
In section 24 of the Principal Act—
(a)for "civil forfeiture offence" substitute "Schedule 2 offence";
(b)for paragraph (a)(ii) substitute—
"(ii)the property is not tainted property; or";
(c)paragraph (a)(i) and (iii) are repealed;
(d)for paragraph (b) substitute—
"(b)the court may make an order excluding the property from the operation of the restraining order if the court is not satisfied that the property in which the applicant claims an interest is not tainted property but is satisfied that—
(i)the applicant was not, in any way, involved in the commission of the Schedule 2 offence; and
(ii)where the applicant acquired the interest before the commission, or alleged commission, of the Schedule 2 offence, the applicant did not know that the property would be, or was intended to be, used in, or in connection with, the commission of the Schedule 2 offence; and
(iii)where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the Schedule 2 offence, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property; and
(iv)the applicant's interest in the property is not subject to the effective control of the person who is suspected to have committed the Schedule 2 offence; and
(v)where the applicant acquired the interest, directly or indirectly, from the person who is suspected to have committed the Schedule 2 offence, that it was acquired for sufficient consideration.".
13.Repeal
Section 25 of the Principal Act is repealed.
14.Duration of restraining order
(1)In section 27(1) of the Principal Act—
(a)for "a forfeiture offence, an automatic forfeiture offence or a civil forfeiture offence" substitute "a Schedule 1 offence or a Schedule 2 offence";
(b)for "a forfeiture offence, automatic forfeiture offence or civil forfeiture offence" substitute "a Schedule 1 offence or a Schedule 2 offence".
(2)For section 27(2) of the Principal Act substitute—
"(2)A restraining order made on an application under section 16(2)(a) ceases to be in force on the expiry of 90 days after it is made unless an application for a civil forfeiture order in respect of the restrained property is then pending before the Supreme Court or the County Court.".
(3)In section 27(3) of the Principal Act—
(a)for "a forfeiture offence, an automatic forfeiture offence or a civil forfeiture offence" (wherever occurring) substitute
"a Schedule 1 offence or a Schedule 2 offence";
(b)in paragraph (b) omit "(other than a charge of a civil forfeiture offence)";
(c)paragraph (ba) is repealed.
(4)In section 27(4) of the Principal Act, after "Supreme Court" insert "or the County Court".
(5)In section 27(5) of the Principal Act, after "Supreme Court" insert "or the County Court".
(6)In section 27(6) of the Principal Act—
(a)for "defendant" (wherever occurring) substitute "person"; and
(b)for "defendant's" substitute "person's".
15.Application for civil forfeiture order
(1)For section 37(1), (2), (3), (3A) and (3B) of the Principal Act substitute—
'(1AA)In this section—
"the Court" means the Supreme Court or the County Court.
(1)If a restraining order is in force under section 18(2) in respect of property, the DPP or a prescribed person, or a person belonging to a prescribed class of persons, may apply to the Court for a civil forfeiture order in respect of the property.'.
(2)For section 37(4) of the Principal Act substitute—
"(4)The applicant must give written notice of the application to every person who the applicant has reason to believe has an interest in the property.".
(3)I n section 37(5) of the Principal Act—
(a)omit "Supreme"; and
(b)omit paragraph (a); and
(c)in paragraph (b) omit "other".
(4)In section 37(6), (7), (8) and (11) of the Principal Act omit "Supreme".
(5)In section 37(8) of the Principal Act omit "and whether or not the period for making the application has expired".
(6)Section 37(9) of the Principal Act is repealed.
(7)In section 37(10) of the Principal Act—
(a)for "civil forfeiture offence" substitute "Schedule 2 offence"; and
(b)omit "Supreme".
16.Determination of application for civil forfeiture order
(1)For section 38(1) of the Principal Act substitute—
'(1AA)In this section—
"the Court" means the Supreme Court or the County Court.
(1)On an application under section 37(1), the Court must order that the restrained property be forfeited to the Minister if the Court is satisfied that—
(a)the requirements of section 37 as to notice of the application have been complied with; and
(b)not less than 30 days have elapsed since the last notice given in accordance with section 37; and
(c)there are no pending applications under section 20 in relation to the restrained property.'.
(2)In section 38(2) of the Principal Act omit "Supreme".
(3)For section 38(4) of the Principal Act substitute—
"(4)The Court may, subject to any rules of court, take into account in determining the application any material that it thinks fit.".
(4)Section 38(5) of the Principal Act is repealed.
17.Civil forfeiture orders by consent
(1)In section 39(1) of the Principal Act, after "Supreme Court" insert "or the County Court".
(2)In section 39(2)(d) of the Principal Act, after "Supreme Court" insert "or the County Court".
18.Exclusion orders
(1)Before section 53(1) of the Principal Act insert—
'(1AA)In this section—
"the Court" means the court that made the relevant civil forfeiture order under section 38.'.
(2)In section 53 of the Principal Act omit "Supreme" (wherever occurring).
(3)In section 53(1) of the Principal Act, for "the defendant" substitute "a person referred to in sub‑section (1A)".
(4)After section 53(1) of the Principal Act insert—
"(1A)A person who is suspected to have committed the Schedule 2 offence in relation to which a restraining order was made against the property is not eligible to make an application under sub-section (1).".
(5)For section 54(1) of the Principal Act substitute—
'(1AA)In this section—
"the Court" means the court that made the relevant civil forfeiture order under section 38.
(1)On an application made under section 53,
the Court may make an order excluding property in which the applicant claims an interest from the operation of an order under section 38 if it is not satisfied that the property in which the applicant claims an interest is not tainted property but is satisfied that—
(a)the applicant was not, in any way, involved in the commission of the Schedule 2 offence; and
(b)where the applicant acquired the interest before the commission, or alleged commission, of the Schedule 2 offence, the applicant did not know that the property would be, or was intended to be, used in, or in connection with, the commission of the Schedule 2 offence; and
(c)where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the Schedule 2 offence, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property; and
(d)the applicant's interest in the property is not subject to the effective control of the person who is suspected to have committed the Schedule 2 offence; and
(e)where the applicant acquired the interest, directly or indirectly, from the person who is suspected to have committed the Schedule 2 offence, that it was acquired for sufficient consideration.'.
(6)In section 54(2) of the Principal Act omit "Supreme".
19.Pecuniary penalty orders
The Principal Act is amended as follows—
(a)for the heading to Division 1 of Part 8 substitute—
"Division 1—Pecuniary Penalty Orders Following Conviction";
(b)in section 58(1), for "an automatic forfeiture offence" substitute "a Schedule 2 offence";
(c)in section 58(2), for "forfeiture offence other than an automatic forfeiture offence" substitute "Schedule 1 offence other than a Schedule 2 offence";
(d)in section 59(1), for "automatic forfeiture offence" substitute "Schedule 2 offence";
(e)for the heading to Division 2 of Part 8 substitute—
"Division 2—Pecuniary Penalty Order Based on Finding of Guilt on Civil Standard";
(f)in section 63(1), for "civil forfeiture offence" substitute "Schedule 2 offence";
(g)in section 63(2), for "civil forfeiture" substitute "this Division";
(h)in section 63(9), for "civil forfeiture offence" substitute "Schedule 2 offence";
(i)in section 64, for "civil forfeiture offence" (wherever occurring) substitute "Schedule 2 offence";
(j)in section 68(1)[2]—
(i)for "The DPP or a" substitute "A"; and
(ii)for "civil forfeiture offence" substitute "Schedule 2 offence";
(k)in section 68(2), for "an automatic forfeiture offence" substitute "a Schedule 2 offence".
20.Examination orders
(1)For section 98(2)(a) of the Principal Act substitute—
"(a)a defendant has been charged with or convicted of a Schedule 1 offence or a Schedule 2 offence or a court has made a restraining order against property under section 18 in relation to a Schedule 2 offence; and".
(2)In section 98(2)(c) of the Principal Act—
(a)after "defendant" (where first occurring) insert "or any other person";
(b)after "defendant" (where secondly occurring) insert "or person".
(3)In section 98(2A) of the Principal Act, for "forfeiture offence, an automatic forfeiture offence or a civil forfeiture offence" substitute "Schedule 1 offence or a Schedule 2 offence".
(4)In section 98(3)(a) of the Principal Act, after "defendant" insert "or in relation to a Schedule 2 offence".
(5)In section 98(5) of the Principal Act, for "civil forfeiture offence" substitute "Schedule 2 offence".
21.Monitoring orders
(1)Before section 115(1) of the Principal Act insert—
'(1AA)In this section—
"the DPI" means the Director, Police Integrity under section 102A(2) of the Police Regulation Act 1958.'.
(2)In section 115(1) of the Principal Act, for
"A member" substitute "The DPI or a member".
(3)In section 115(2)(a)(i) of the Principal Act, for "forfeiture offence, an automatic forfeiture offence or a civil forfeiture offence" substitute "Schedule 1 offence or a Schedule 2 offence".
22.Consequential amendmentscategories of offences etc.—
(1)The Principal Act is amended as follows—
(a)in section 19D(2)(a), for "forfeiture offence" substitute "Schedule 1 offence or Schedule 2 offence";
(b)in section 21[3], for "forfeiture offence" (wherever occurring) substitute "Schedule 1 offence";
(c)in section 31D(1)(a)(i), for "a forfeiture offence, an automatic forfeiture offence
or a civil forfeiture offence" substitute
"a Schedule 1 offence or a Schedule 2 offence";
(d)in section 32(1), for "forfeiture offence" substitute "Schedule 1 offence";
(e)in section 34(2)(d), for "forfeiture offence" substitute "Schedule 1 offence";
(f)in section 34B, for "forfeiture offence" (wherever occurring) substitute "Schedule 1 offence";
(g)in section 34C, for "forfeiture offence" (wherever occurring) substitute "Schedule 1 offence";
(h)in section 35, for "an automatic forfeiture offence" (wherever occurring) substitute
"a Schedule 2 offence";
(i)in section 35A—
(i)in the heading, for "Automatic forfeiture offences" substitute "Schedule 2 offences";
(ii)for "an automatic forfeiture offence" substitute "a Schedule 2 offence";
(j)in section 35C, for "an automatic forfeiture offence" substitute "a Schedule 2 offence";
(k)in section 36, for "an automatic forfeiture offence" (wherever occurring) substitute
"a Schedule 2 offence";
(l)in section 50, for "forfeiture offence" (wherever occurring) substitute "Schedule 1 offence";
(m)in section 52, for "automatic forfeiture offence" (wherever occurring) substitute "Schedule 2 offence".
(2)The Principal Act is amended as follows—
(a)in section 55(4), (6)(b) and (9), for "forfeiture offence" substitute "forfeiture order";
(b)in section 77, for "forfeiture offence" substitute "Schedule 1 offence";
(c)in section 79(3), for "forfeiture offence" substitute "Schedule 1 offence";
(d)in section 79A(3), for "forfeiture offence" substitute "Schedule 1 offence";
(e)in section 92(2), for "forfeiture offence" (wherever occurring) substitute "Schedule 1 offence";
(f)in section 97(1)(a), for "forfeiture offence" substitute "Schedule 1 offence";
(g)in section 97(1)(c) and (d), for "civil forfeiture offence" substitute "Schedule 2 offence";
(h)in section 100(1), for "forfeiture offence, an automatic forfeiture offence or a civil forfeiture offence" substitute "Schedule 1 offence or a Schedule 2 offence";
(i)in section 109(1), for "forfeiture offence, automatic forfeiture offence or civil forfeiture offence" substitute "Schedule 1 offence or a Schedule 2 offence";
(j)in section 109(2), for "forfeiture offence, automatic forfeiture offence or civil forfeiture offence" substitute "Schedule 1 offence or the Schedule 2 offence";
(k)in section 113(c)(i), for "forfeiture offence, automatic forfeiture offence or civil forfeiture offence" substitute "Schedule 1 offence or Schedule 2 offence";
(l)in section 113(c)(ii), for "forfeiture offence" substitute "Schedule 1 offence";
(m)in section 114, for "forfeiture offence, automatic forfeiture offence or civil forfeiture offence" substitute "Schedule 1 offence or a Schedule 2 offence";
(n)in section 118D(2)(a)(i), for "forfeiture offence, an automatic forfeiture offence or a civil forfeiture offence" substitute "Schedule 1 offence or a Schedule 2 offence";
(o)in section 118E(2)(a), for "forfeiture offence, an automatic forfeiture offence or a civil forfeiture offence" substitute "Schedule 1 offence or a Schedule 2 offence";
(p)in section 120(1)(b), for "forfeiture offence" substitute "Schedule 1 offence";
(q)in section 124, for "forfeiture offence" substitute "Schedule 1 offence";
(r)in section 131(2)(a), for "forfeiture offence" substitute "Schedule 1 offence";
(s)in section 131(3), for "forfeiture offence, an automatic forfeiture offence or a civil forfeiture offence" substitute "Schedule 1 offence or a Schedule 2 offence";
(t)in section 141(1), for "forfeiture offence" substitute "Schedule 1 offence";
(u)in section 142(2)—
(i)after "Supreme Court" insert "or the County Court";
(ii)for "civil forfeiture offence in reliance on which the order was made" substitute "Schedule 2 offence in relation to which the order was made";
(v)in section 142(5)—
(i)in paragraph (a), after "Supreme Court" insert "or the County Court";
(ii)in paragraph (c), for "in relation to a civil forfeiture offence" (wherever occurring) substitute "under Division 2 of Part 8";
(w)in section 142(6), after "Supreme Court" insert "or the County Court, as the case may be";
(x)for the heading to Schedule 1 substitute—
"OFFENCES—FORFEITURE ON COURT ORDER";
(y)in Schedule 1, for item 2 substitute—
"2.A Schedule 2 offence.".
(z)for the heading to Schedule 2 substitute—
"OFFENCES—AUTOMATIC FORFEITURE AND CIVIL FORFEITURE".
(3)Schedule 3 to the Principal Act is repealed.
23.New section 174 inserted
After section 173 of the Principal Act insert—
"174.Transitional—Major Crime Legislation (Seizure of Assets) Act 2004
This Act as amended by the Major Crime Legislation (Seizure of Assets) Act 2004 applies to an application for an order under this Act made on or after the commencement of the Major Crime Legislation (Seizure of Assets) Act 2004, irrespective of when the offence to which the application relates is alleged or suspected to have been committed.".
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PART 3—CONSEQUENTIAL AMENDMENTS TO OTHER ACTS
24.Sentencing Act 1991
The Sentencing Act 1991 is amended as follows—
(a)in section 5(2A)(e), for "an automatic forfeiture offence" substitute "a Schedule 2 offence";
(b)in Schedule 1A, in item 2, for "automatic forfeiture offence" substitute "Schedule 2 offence".
25.Drugs, Poisons and Controlled Substances Act 1981
In section 81(1B)(a) of the Drugs, Poisons and Controlled Substances Act 1981, for "forfeiture offence" substitute "Schedule 1 offence".
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ENDNOTES
Minister's second reading speech—
Legislative Assembly: 5 October 2004
Legislative Council: 10 November 2004
The long title for the Bill for this Act was "to amend the Confiscation Act 1997, the Sentencing Act 1991 and the Drugs, Poisons and Controlled Substances Act 1981 and for other purposes."
[1] S. 11: In the heading to section 22 of the Principal Act omit "offence".
[2] S. 19(j): For the heading to section 68 of the Principal Act substitute—
"Assessment of benefits in relation to Schedule 2 offences".
[3] S. 22(1)(b): In the heading to section 21 of the Principal Act, for "forfeiture offence" substitute "Schedule 1 offence".
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