Confiscation Act 1997 - legislation.vic.gov.auFILE/97-108a086.docx · Web viewOCPC Victoria, Word...

Version No. 086

Confiscation Act 1997No. 108 of 1997

Version incorporating amendments as at1 May 2018

TABLE OF PROVISIONSSection Page

Part 1—Preliminary 1

1 Purposes 12 Commencement 23 Definitions 23A Objects 214 Meaning of conviction 225 Meaning of absconds 226 Meaning of setting aside a conviction 247 Meaning of charged with an offence 247A Meaning of derived property—civil forfeiture 257B Meaning of derived property—other cases 267C Meaning of serious criminal activity 268 Related offences 289 Effective control of property 2810 Property in which the accused has an interest 2911 Meaning of dealing with property 2912 Jurisdiction 3013 Act to bind Crown 32

Part 2—Restraining orders other than civil forfeiture restraining orders and unexplained wealth restraining orders 33

14 Restraining orders 3315 Purposes for which a restraining order may be made 3416 Application for restraining order 3717 Procedure on application 4118 Determination of application 4319 Notice of restraining order to be given to persons affected 4419A Notice requiring declaration of property interests 4419B What must be included in a declaration of property

interests? 4519C Offences 4619D Court directions to provide information 4619E Admissibility of statement 47

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20 Application for exclusion from restraining order 4821 Determination of exclusion application—restraining order

—Schedule 1 offence 5222 Determination of exclusion application—restraining order

in relation to Schedule 2 offence 5422A Determination of exclusion application—serious drug

offence restraining order 5823 Declaration that restraining order shall be disregarded for

purposes of automatic forfeiture 5924 Protected property not to be included in serious drug

offence restraining order 6026 Further orders 6127 Duration and setting aside of restraining order 6428 Registration of restraining order 6929 Contravention of restraining order 7030 Priority given to payment of restitution or compensation 7131 State to pay restitution and compensation out of forfeited

property etc. 71

Part 2A—Freezing orders 73

31A Definition 7331B Chief Commissioner of Police may authorise police to

apply for freezing orders 7331C Freezing order 7431D Application for freezing order 7431E Application may be made by telephone etc. 7731F Making of freezing order 7731G Notice of freezing order 8131H When does a freezing order take effect? 8231I Extension of freezing orders 8331J Report to Magistrates' Court on freezing order 8531K Failure to comply with freezing order 8631L Offence to disclose existence of freezing order 8631M Freezing order to be disregarded for certain purposes 88

Part 3—Forfeiture of property 89

Division 1—Forfeiture on court order 89

32 Application for forfeiture order 8933 Determination of application for forfeiture order 9134 Consent orders 92

Division 1A—Tainted property substitution declaration—forfeiture order 93

34A Interpretation 9334B Application for tainted property substitution declaration 9434C Court may make tainted property substitution declaration 95

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Division 2—Automatic forfeiture after conviction 96

35 Automatic forfeiture of restrained property on conviction of certain offences 96

35A Schedule 2 offences—application for court declaration 9835B Applicant to notify accused 9935C Court may make declaration 9936 Declaration that property has been forfeited 100

Division 3—Tainted property substitution declaration—automatic forfeiture 101

36A Interpretation 10136B Application for tainted property substitution declaration 10136C Notice of application 10236D Right to appear and give evidence 10336E Hearing of application 10336F Determination of application 10336G Deemed withdrawal of application 104

Division 4—Automatic forfeiture of property of serious drug offender 105

36GA Automatic forfeiture of restrained property on declaration that person is serious drug offender 105

36GB Declaration that property has been forfeited 107

Part 4—Civil forfeiture regime 108

Division 1—Civil forfeiture restraining orders 108

36H Civil forfeiture restraining orders 10836I Purpose for which a civil forfeiture restraining order may

be made 11036K Application for civil forfeiture restraining order 11236L Procedure on application for civil forfeiture restraining

order 11336M Determination of application for civil forfeiture restraining

order 11536N Notice of civil forfeiture restraining order to be given to

persons affected 11636O Notice requiring declaration of property interests 11736P What must be included in a declaration of property

interests? 11736R Offences 11936S Court directions to provide information 11936T Admissibility of statement 12036U Application for exclusion from civil forfeiture restraining

order 12136V Determination of application for exclusion from civil

forfeiture restraining order 124

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36W Further orders 12636X Duration and setting aside of civil forfeiture restraining

order 12936Y Registration of civil forfeiture restraining order 13136Z Contravention of civil forfeiture restraining order 13236ZA Priority given to payment of restitution or compensation 13336ZB State to pay restitution and compensation out of forfeited

property etc. 133

Division 2—Civil forfeiture orders 134

37 Application for civil forfeiture order 13438 Determination of application for civil forfeiture order 13739 Consent orders 13840 Forfeiture of property that may be used as evidence in trial 139

Division 3—Orders for exclusion from civil forfeiture orders 139

40A Application for exclusion from civil forfeiture order 13940B Determination of application for exclusion from civil

forfeiture order 143

Part 4A—Unexplained wealth 146

Division 1—Unexplained wealth restraining orders 146

40C Unexplained wealth restraining orders 14640D Purpose for which an unexplained wealth restraining order

may be made 14740E Property may be subject to both unexplained wealth

restraining order and other orders 14840F Application for unexplained wealth restraining order 14940G Property lawfully acquired 15240H Procedure on application for unexplained wealth

restraining order 15440I Determination of application for unexplained wealth

restraining order 15640J Notice of unexplained wealth restraining order to be given

to persons affected 15840K Notice requiring declaration of interests in restrained

property 15940L What must be included in a declaration of interests in

restrained property? 15940M Notice to person suspected of engaging in serious criminal

activity 16040N What must be included in a declaration by an owner of

property? 16140O Offences 16240P Court directions to provide information 16340Q Admissibility of statement 164

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40R Application for exclusion from unexplained wealth restraining order 165

40S Determination of application for exclusion from unexplained wealth restraining order 167

40T Evidentiary requirements for exclusion order 16840U Application for substitution order 16940V Determination of application for substitution order 17040W Further orders 17240X Setting aside of unexplained wealth restraining order 17540Y Registration of unexplained wealth restraining order 17540Z Contravention of unexplained wealth restraining order 176

Division 2—Forfeiture of unexplained wealth 177

40ZA Forfeiture of unexplained wealth 17740ZB Declaration that property has been forfeited 17840ZC Application for exclusion from unexplained wealth

forfeiture 17840ZD Determination of application for exclusion from

unexplained wealth forfeiture 181

Part 5—Effect of forfeiture 182

41 Effect of forfeiture 18242 Power to discharge mortgage or charge 18443 Court may give directions 18444 Disposal of forfeited property 18544A Certificate of disposal 18945 Relief from undue hardship 18945A Relief from automatic forfeiture of property of serious

drug offender 19045B Relief from unexplained wealth forfeiture 19246 Discharge of forfeiture order 19347 Discharge of automatic forfeiture in respect of an interest 19448 Discharge of civil forfeiture order 19548A Discharge of unexplained wealth forfeiture in respect of an

interest 196

Part 6—Exclusion orders 198

49 Application for exclusion from forfeiture order 19850 Determination of exclusion application—forfeiture order 19951 Application for exclusion from automatic forfeiture 20152 Determination of exclusion application—automatic

forfeiture 20253 Application for exclusion from automatic forfeiture of

property of serious drug offender 20454 Determination of application from exclusion from

automatic forfeiture of property of serious drug offender 206

5

Part 7—Return of property 207

55 Application to Minister for return of property or payment of value 207

56 Person with interest in forfeited property may buy back interest 210

57 Buying out other interests in forfeited property 211

Part 8—Pecuniary penalty orders 214

Division 1—Pecuniary penalty orders following conviction 214

58 Application for pecuniary penalty order 21459 Determination of application for pecuniary penalty order 21660 Consent orders 21761 Pecuniary penalty order does not prevent forfeiture 21862 Discharge of pecuniary penalty order 218

Division 3—General 220

67 Assessment of benefits 22068 Assessment of benefits in relation to Schedule 2 offences 22269 Variation of pecuniary penalty order after successful

appeal against restitution or compensation order 22469A Variation of pecuniary penalty order after subsequent

forfeiture 22570 Declaration that property available to satisfy order 22671 Court may give directions 22772 Charge on property subject to restraining order or

declaration 22773 Disposal of property obtained to satisfy pecuniary penalty

order 23074 Pecuniary penalty order debt due to Crown 231

Part 9—Powers of trustee 232

75 Liability under forfeiture or pecuniary penalty order to be satisfied by trustee 232

76 Provisions concerning the trustee 233

Part 10—Disposal orders 237

77 Application for disposal order 23778 Disposal orders 238

Part 10A—Property management 240

78A Memorandum of understanding 24078B Certificate of responsibility and power 241

Part 11—Search warrants 242

79 Search warrants 242

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79A Seizure warrants—public places 24380 Application for warrant 24481 Warrant may be granted by telephone 24582 Record of proceedings for warrant 24783 Notice to occupier of premises entered under search

warrant 24784 Duty to show search warrant 24984A Duty to show seizure warrant 24985 Use of force 24986 Use of assistants to execute warrant 24987 Application of Magistrates' Court Act 1989 24988 Expiry of warrant 25088A Notice of execution of seizure warrant 25089 Report on execution of warrant etc. 25090 Absence etc. of magistrate or judge who issued warrant 25191 Defects in warrants 25292 Seizure of property under search warrant 25293 Embargo notice 25394 Search of persons under search warrant 25595 Obstruction or hindrance of person executing search

warrant 25595A Application for property seized under search warrants

under other Acts to be held or retained under this Act 25595B What must be in the application? 25695C Court may make declaration 25795D Notice of declaration 25895E Effect of declaration 25896 Disposal of livestock or perishable property 25897 Return of seized property 259

Part 11A—Property management warrants 265

Division 1—Search and inspection warrants 265

97A Application for search and inspection warrant 26597B Search and inspection warrant 26697C Record of proceedings for search and inspection warrant 26797D Announcement before entry 26897E Copy of search and inspection warrant to be given to

occupier 26897F Use of assistants to execute search and inspection warrant 26997G Application of Magistrates' Court Act 1989 26997H Expiry of search and inspection warrant 26997I Report on execution of warrant etc. 27097J Copy of inventory to be given 27197K Defects in search and inspection warrant 27197L Obstruction or hindrance of person executing search and

inspection warrant 271

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Division 2—Search and seizure warrants 272

97M Application for search and seizure warrant 27297N Search and seizure warrant 27397O Record of proceedings for search and seizure warrant 27497P Announcement before entry 27497Q Copy of search and seizure warrant to be given to occupier 27597R Use of assistants to execute search and seizure warrant 27597S Application of Magistrates' Court Act 1989 27697T Expiry of search and seizure warrant 27697U Report on execution of search and seizure warrant etc. 27697V Defects in search and seizure warrant 27797W Obstruction or hindrance of person executing search and

seizure warrant 277

Part 12—Examination orders 278

98 Order for examination 27899 Examination 281

Part 13—Information gathering powers 283

Division 1—Production orders 283

100 Application for production order—relevant offence 283100A Application for production order—unexplained wealth 284101 Production orders 285102 Powers under production orders 288103 Expiry of production order 289104 Report on execution of production order etc. 289105 Absence etc. of magistrate or judge who made production

order 289106 Effect of production orders on proceedings etc. 290107 Variation of production orders 291108 Failure to comply with production order 291

Division 2—Search powers 292

109 Application for search warrant for property-tracking documents 292

110 Search warrants 293111 Expiry of warrant 295112 Application of Magistrates' Court Act 1989 295113 Authority conferred by search warrant 295114 Search for documents with consent 296

Division 3—Monitoring orders 296

115 Application for monitoring order 296116 Monitoring orders 298117 Failure to comply with monitoring order 299

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118 Existence and operation of monitoring order not to be disclosed 299

Division 3A—Information notices 302

118A Definition 302118B Chief Commissioner of Police may authorise police to

issue information notices 302118C Who can issue information notices? 302118D Issuing information notices—authorised police officer 303118E Issuing information notices—prescribed person 304118F Information notice to be signed and reasons recorded 305118G What can an information notice require? 305118H What must the information notice contain? 306118I How is an information notice given? 308118J Offence to fail to comply with information notice 308118K Offence to disclose existence of information notice 308118L Immunity from suit 311118M Giving of information notice to be disregarded for certain

purposes 311

Division 4—Reports of suspect transactions 311

119 Reports of suspect transactions 311

Division 4A—Sharing of information 315

119A Communication of information between law enforcement agencies 315

Division 5—Interstate offences 315

120 Ministerial arrangements for transmission of documents or information 315

Division 6—Document requests 317

120A Document request relating to maintenance and management of property 317

120AB Document request relating to enforcement of pecuniary penalty order 318

120B Document request 318120C Offences 319120D Requested documents to be provided—Court order 319120E Return of documents 319

Part 15—Interstate orders and warrants 321

124 Definition 321125 Registration of interstate orders 321126 Effect of registration 322127 Duration of registration 323

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128 Cancellation of registration 323129 Charge on property subject to registered interstate

restraining order 324130 Trustee may act as agent 324131 Interstate orders and search warrants 325

Part 16—Miscellaneous 327

132 Standard of proof 327133 Nature of proceedings 327133A Costs 327134 Crime Prevention and Victims' Aid Fund 329134A Payment of money realised into Consolidated Fund 330134B Payment to other jurisdictions under equitable sharing

program 331135 Conversion costs 332136 Stamp duty not payable 332137 Service of documents 333138 Maximum fine for body corporate 334139 Law enforcement agency to provide information to

Minister 334139A Reports to the Minister 334140 Secrecy 336141 Court may hear applications at same time 337141A Arrangements to avoid operation of Act 337142 Appeals 340143 Provision of legal aid 342143A Delegation 344144 Operation of other laws not affected 345144A Validation 345145 Supreme Court—limitation of jurisdiction 345146 Regulations 345147 Rules of court 346

Part 18—Consequential amendments and transitional provisions 347

157 Transitional provisions—Enactment of Confiscation Act 1997 347

158 Confiscation (Amendment) Act 2003—definition of tainted property transitional provision 351

159 Confiscation (Amendment) Act 2003—declaration of property interests transitional provision 351

160 Confiscation (Amendment) Act 2003—freezing orders transitional provision 351

161 Confiscation (Amendment) Act 2003—tainted property substitution declaration transitional provisions 351

162 Confiscation (Amendment) Act 2003—disposal orders transitional provision 352

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163 Confiscation (Amendment) Act 2003—property seized under other Acts transitional provision 352

164 Confiscation (Amendment) Act 2003—examination orders transitional provision 352

165 Confiscation (Amendment) Act 2003—document requests transitional provisions 352

166 Confiscation (Amendment) Act 2003—Schedule 1 offences transitional provisions 353

167 Confiscation (Amendment) Act 2003—Schedule 2—drug trafficking offences transitional provisions 353

168 Confiscation (Amendment) Act 2003—Schedule 2 offences transitional provisions 354

169 Confiscation (Amendment) Act 2003—Schedule 2—money laundering transitional provisions 355

170 Confiscation (Amendment) Act 2003—Schedule 2—attempts transitional provisions 355

171 Confiscation (Amendment) Act 2003—Schedule 2—common law offences transitional provisions 356

172 Interpretation of Legislation Act 1984 357173 Transitional—Crimes (Money Laundering) Act 2003 357174 Transitional—Major Crime Legislation (Seizure of Assets)

Act 2004 358175 Transitional—Justice Legislation (Further Amendment)

Act 2006 358176 Validation of certain exclusion orders—Confiscation

Amendment Act 2007 359177 Existing applications for exclusion orders—Confiscation

Amendment Act 2007 361178 Sufficient consideration—Confiscation Amendment Act

2007 363179 Transitional—Confiscation Amendment Act 2010 363180 Regulations dealing with transitional matters 367181 Confiscation Amendment Act 2010—proceedings for civil

forfeiture generally 368182 Confiscation Amendment Act 2010—tainted property and

derived property 370183 Confiscation Amendment Act 2010—freezing orders 371184 Transitional provisions for Confiscation Amendment

Act 2010 do not derogate from Interpretation of Legislation Act 1984 372

185 Sex Work and Other Acts Amendment Act 2011—Schedule 1 offences transitional provision 372

186 Sex Work and Other Acts Amendment Act 2011—Schedule 2 offences transitional provision 372

187 Transitional—Independent Broad-based Anti-corruption Commission Act 2011 373

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188 Transitional—Criminal Organisations Control and Other Acts Amendment Act 2014 374

189 Transitional—Justice Legislation Amendment (Confiscation and Other Matters) Act 2014 374

190 Transitional—Confiscation and Other Matters Amendment Act 2016 375

191 Transitional provision—Crimes Amendment (Sexual Offences) Act 2016 376

Schedules 377

Schedule 1—Offences—Forfeiture on court order 377

Schedule 2—Offences—Automatic forfeiture and civil forfeiture 389

═══════════════

Endnotes 405

1 General information 405

2 Table of Amendments 407

3 Amendments Not in Operation 415

4 Explanatory details 417

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Version No. 086


Version incorporating amendments as at1 May 2018

The Parliament of Victoria enacts as follows:

Part 1—Preliminary1 Purposes

The purposes of this Act are—

(a) to provide for the forfeiture of the proceeds of certain offences, whatever the form into which they have been converted;

(b) to provide for the automatic forfeiture of restrained property of persons convicted of certain offences in certain circumstances;

(c) to provide for the civil 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;

(d) to provide for the forfeiture of property used in connection with the commission of certain offences;

(da) to provide for the forfeiture of property of a person who is unable to satisfy a court that the property was lawfully acquired;

(e) to provide for the freezing of assets;

(f) to provide for the destruction or disposal of certain illegal goods;

1

S. 1(c) substituted by No. 87/2004 s. 4, amended by No. 68/2010 s. 34.

S. 1(da) inserted by No. 79/2014 s. 3.

(g) to provide for the effective enforcement of this Act and the management of seized and restrained assets;

(h) to preserve assets for the purpose of restitution or compensation to victims of crime;

(i) to amend the Sentencing Act 1991 to provide for the sentencing of continuing criminal enterprise offenders;

(j) to repeal the Crimes (Confiscation of Profits) Act 1986;

(k) to make consequential amendments to certain other Acts.

2 Commencement

(1) This Part comes into operation on the day on which this Act receives the Royal Assent.

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

(3) If a provision referred to in subsection (2) does not come into operation before 1 January 1999, it comes into operation on that day.

3 Definitions

(1) In this Act—

account means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals and includes the following—

(a) a facility or arrangement for—

(i) a fixed term deposit; or

(ii) a safety deposit box;

2

S. 3 amended by No. 63/2003 s. 5(2) (ILA s. 39B(1)).

S. 3(1) def. of account substituted by No. 27/2016 s. 3(1).

(b) a credit card account;

(c) a loan account (other than a credit card account);

(d) an account held in the form of units in—

(i) a cash management trust; or

(ii) a trust of a kind prescribed by the regulations;

accused, in relation to an offence, means the person who—

(a) has been or will be charged with the offence; or

(b) has been convicted of the offence—

and in respect of whom an application is made under this Act;

appeal period, in relation to the conviction of an accused of an offence, means the period ending—

(a) if the period provided for the lodging of an appeal against the conviction has ended without such an appeal having been lodged, at the end of that period; or

(b) if an appeal against the conviction has been lodged, when the appeal is abandoned or finally determined;

appropriate officer means—

(a) in the case of an application to the Magistrates' Court or the Children's Court—the Chief Commissioner of Police; or

3

S. 3(1) def. of accused inserted by No. 68/2009 s. 97(Sch. item 23.1).

S. 3(1) def. of appeal period amended by No. 68/2009 s. 97(Sch. item 23.2).

(b) in the case of an application that is prescribed by the regulations for the purposes of this paragraph or is of a class of applications that is so prescribed—a person so prescribed or a person belonging to a class of persons so prescribed;

AUSTRAC CEO means the Chief Executive Officer of the Australian Transaction Reports and Analysis Centre continued in existence by section 209 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth;

automatic forfeiture means—

(a) forfeiture under section 35; or

(ab) forfeiture under section 36GA; or

(b) the making of a pecuniary penalty order on an application under section 58(1) if section 68 applies in relation to the Schedule 2 offence;

* * * * *

automatic forfeiture quantity has the same meaning as it has in the Drugs, Poisons and Controlled Substances Act 1981;

bank means—

4

S. 3(1) def. of AUSTRAC CEO inserted by No. 68/2010 s. 4(1).

S. 3(1) def. of automatic forfeiture amended by Nos 87/2004 s. 5(a), 55/2014 s. 17(a).

S. 3(1) def. of automatic forfeiture offence substituted by No. 63/2003 s. 4(1), amended by No. 104/2003 s. 5(2), repealed by No. 87/2004 s. 5(b).

S. 3(1) def. of automatic forfeiture quantity inserted by No. 63/2003 s. 5(1).S. 3(1) def. of bank amended by No. 11/2001 s. 3(Sch. item 13).

(a) the Reserve Bank of Australia; or

(b) an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth;

(c) a person who carries on State banking within the meaning of section 51(xiii) of the Constitution of the Commonwealth;

building society means a society registered or incorporated as a building society, co-operative housing society or similar society under an Act or the laws of another State or a Territory;

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

cash dealer has the same meaning as in the Financial Transaction Reports Act 1988 of the Commonwealth;

civil forfeiture means forfeiture under, or in accordance with, Part 4;

civil forfeiture exclusion order means—

(a) a section 36V exclusion order; or

(b) a section 40B exclusion order;

* * * * *

5

S. 3(1) def. of business day inserted by No. 68/2010 s. 4(2).

S. 3(1) def. of civil forfeiture substituted by No. 68/2010 s. 35(2)(a).S. 3(1) def. of civil forfeiture exclusion order inserted by No. 68/2010 s. 35(1).

S. 3(1) def. of civil forfeiture offence amended by No. 104/2003 s. 5(2), repealed by No. 87/2004 s. 5(b).

civil forfeiture order means an order for forfeiture made under Division 2 of Part 4;

civil forfeiture restraining order means an order made under section 36M;

conversion costs means costs referred to in section 135;

corresponding law, in relation to this Act or a provision of this Act, means a law of the Commonwealth or another State or a Territory that is declared by the regulations to be a law that corresponds to this Act or the provision;

court means Supreme Court or County Court or, subject to section 12, the Magistrates' Court or Children's Court, as the case requires;

credit union means a credit union or credit society carrying on business under an Act or the laws of another State or a Territory;

* * * * *

derived property—

(a) in relation to civil forfeiture, a civil forfeiture restraining order, a civil forfeiture order or a civil forfeiture exclusion order or in relation to unexplained wealth forfeiture or an unexplained wealth restraining order,

6

S. 3(1) def. of civil forfeiture order substituted by No. 68/2010 s. 35(2)(b).S. 3(1) def. of civil forfeiture restraining order inserted by No. 68/2010 s. 35(1).

S. 3(1) def. of defendant repealed by No. 68/2009 s. 97(Sch. item 23.3).S. 3(1) def. of derived property inserted by No. 42/2007 s. 4(1), amended by No. 68/2009 s. 97(Sch. item 23.4), substituted by No. 68/2010 s. 35(4), amended by No. 79/2014 s. 4(a).

has the meaning given in section 7A; and

(b) in any other case, has the meaning given in section 7B;

* * * * *

disposal order means an order made under section 78;

document request means a request for documents made under Division 6 of Part 13;

domestic partner of a person means—

(a) a person who is in a registered relationship with the person; or

(b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(i) for fee or reward; or

(ii) on behalf of another person or an organisation (including a government or government

7

S. 3(1) def. of Director repealed by No. 68/2010 s. 4(3).

S. 3(1) def. of document request inserted by No. 63/2003 s. 5(1), substituted by No. 68/2010 s. 4(4).

S. 3(1) def. of domestic partner inserted by No. 42/2007 s. 4(1), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 7.1).

agency, a body corporate or a charitable or benevolent organisation);

DPP means Director of Public Prosecutions for Victoria;

encumbrance, in relation to property, includes any interest, mortgage, charge, right, claim or demand which is or may be had, made or set up in, to, on or in respect of the property;

examination order means an order made under Part 12;

exclusion order means an order made under section 21, 22, 50(1) or 52(1), but does not include a civil forfeiture exclusion order;

facsimile copy means a copy obtained by facsimile transmission;

financial institution means—

(a) a bank; or

(b) a building society; or

(c) a credit union; or

(d) a body corporate that is or, if it had been incorporated in Australia, would be, a financial corporation within the meaning of section 51(xx) of the Constitution of the Commonwealth; or

(e) a casino operator within the meaning of the Casino Control Act 1991; or

(f) the holder of the wagering licence under Part 3 of Chapter 4 of the Gambling Regulation Act 2003;

fixed term deposit means an interest bearing deposit lodged for a fixed period;

8

S. 3(1) def. of exclusion order amended by No. 68/2010 s. 35(3)(a).

S. 3(1) def. of financial institution amended by Nos 63/2003 s. 4(a)(b), 79/2006 s. 86.

* * * * *

forfeiture order means an order made under Division 1 of Part 3;

freezing order means an order made under section 31F;

gift, in relation to property, includes a transfer for a consideration significantly less than the greater of—

(a) the prevailing market value of the property; or

(b) the consideration paid by the accused or, in relation to civil forfeiture or unexplained wealth forfeiture, the transferor of the property;

information notice means a notice issued under section 118D or 118E;

interest, in relation to property, means—

(a) a legal or equitable estate or interest in the property; or

(b) a right, power or privilege over, or in connection with, the property;

interstate forfeiture order means an order that is made under a corresponding law and is of a

9

S. 3(1) def. of forfeiture offence amended by No. 104/2003 s. 5(2), repealed by No. 87/2004 s. 5(b).

S. 3(1) def. of freezing order inserted by No. 63/2003 s. 5(1).

S. 3(1) def. of gift amended by Nos 68/2009 s. 97(Sch. item 23.5), 68/2010 s. 35(6), 79/2014 s. 4(b).

S. 3(1) def. of information notice inserted by No. 63/2003 s. 5(1).

kind declared by the regulations to be within this definition;

interstate offence means an offence against the laws of the Commonwealth or another State or a Territory, being an offence in relation to which an interstate forfeiture order or an interstate pecuniary penalty order may be made under a corresponding law of the Commonwealth or that State or Territory;

interstate pecuniary penalty order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition;

interstate restraining order means an order that is made under a corresponding law and is of a kind declared by the regulations to be within this definition;

law enforcement agency means—

(a) the DPP; or

(b) Victoria Police; or

(ba) any other authority or person responsible for the performance of functions or activities under this Act directed to—

(i) the management of property seized under this Act or property in respect of which a restraining order, a civil forfeiture restraining order or an unexplained wealth restraining order is made (other than a trustee); or

(ii) the enforcement of this Act; or

10

S. 3(1) def. of law enforcement agency amended by Nos 63/2003 s. 4(3), 68/2010 s. 35(3)(b), 37/2014 s. 10(Sch. item 25.1(b)), 79/2014 s. 4(c).

(iii) the enforcement of orders made under this Act; or

(c) any other authority or person responsible for the investigation or prosecution of offences against the laws of—

(i) Victoria or any other State; or

(ii) the Commonwealth; or

(iii) the Australian Capital Territory or the Northern Territory of Australia—

that is prescribed for the purposes of this definition;

legal practitioner means an Australian legal practitioner;

monitoring order means an order made under section 116;

occupier, in Part 11A, means a person who appears to be an occupier of, or to be in charge of, the premises and to be aged 18 years or more;

partly discharged, in respect of a mortgage, means a payment has been made to reduce the liability under that mortgage, whether or not the reduction in liability is recorded on a register kept by a registration authority;

pecuniary penalty order means an order made under Part 8;

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S. 3(1) def. of legal practitioner inserted by No. 18/2005 s. 18(Sch. 1 item 17.1), amended by No. 17/2014 s. 160(Sch. 2 item 17).

S. 3(1) def. of occupier inserted by No. 63/2003 s. 5(1).

S. 3(1) def. of partly discharged inserted by No. 27/2016 s. 4(2).

police officer has the same meaning as in the Victoria Police Act 2013;

premises includes vessel, aircraft, vehicle and any place (other than a public place), whether built upon or not;

proceeds, in relation to an offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence;

production order means an order made under section 101;

property means real or personal property of every description, whether situated within or outside Victoria and whether tangible or intangible, and includes any interest in any such real or personal property;

property-tracking document means—

(a) a document relevant to—

(i) identifying, locating or quantifying property in which a person has an interest; or

(ii) identifying or locating any document necessary for the transfer of property in which a person has an interest; or

(b) a document relevant to—

(i) identifying, locating or quantifying tainted property; or

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S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 25.1(a)).

S. 3(1) def. of premises amended by No. 63/2003 s. 4(4).

S. 3(1) def. of property-tracking document amended by No. 79/2014 s. 4(d).

(ii) identifying or locating any document necessary for the transfer of tainted property; or

(c) a document relevant to—

(i) identifying, locating or quantifying property that has not been lawfully acquired; or

(ii) identifying or locating any document necessary for the transfer of property that has not been lawfully acquired;

protected property has the meaning given by section 24(2);

relevant period means the period of 6 months, or any longer period that is fixed by the court before which the person was convicted on an application made by the DPP or an appropriate officer, as the case may be, on notice to that person during that period of 6 months, after—

(a) if the person is to be taken to have been convicted of the offence by reason of section 4(1)(a)—the day on which the person was convicted of the offence;

(b) if the person is to be taken to have been convicted of the offence by reason of section 4(1)(b)—the day on which the person was found guilty of the offence;

(c) if the person is to be taken to have been convicted of the offence by reason of

13

S. 3(1) def. of protected property inserted by No. 55/2014 s. 17(c).

section 4(1)(c)—the day on which the offence was taken into account;

reportable details, in relation to a transaction, means the details of the transaction that are referred to in Schedule 4 to the Financial Transaction Reports Act 1988 of the Commonwealth;

reporting entity has the same meaning as in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth;

restrained property means property, including an interest in property, to which a restraining order, a civil forfeiture restraining order or an unexplained wealth restraining order applies;

restraining order means an order made under section 18, including a serious drug offence restraining order;

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;

14

S. 3(1) def. of reporting entity inserted by No. 68/2010 s. 4(1).

S. 3(1) def. of restrained property inserted by No. 42/2007 s. 4(1), amended by Nos 68/2010 s. 35(3)(c), 79/2014 s. 4(e).

S. 3(1) def. of restraining order amended by No. 55/2014 s. 17(b).

S. 3(1) def. of Schedule 1 offence inserted by No. 87/2004 s. 5(c).

S. 3(1) def. of Schedule 2 offence inserted by No. 87/2004 s. 5(c).

search warrant means (except in Division 2 of Part 13) a search warrant issued under Part 11 and in Division 2 of Part 13 means a search warrant issued under that Division;

Secretary means the Secretary to the Department of Justice and Regulation;

section 36V exclusion order means an order made under section 36V excluding property or an interest in property from a civil forfeiture restraining order;

section 40B exclusion order means an order made under section 40B excluding property or an interest in property from a civil forfeiture order;

section 40S exclusion order means an order made under section 40S excluding property or an interest in property from an unexplained wealth restraining order;

section 40ZD exclusion order means an order made under section 40ZD excluding property or an interest in property from an unexplained wealth forfeiture;

seizure warrant means a warrant issued under section 79A;

15

S. 3(1) def. of Secretary inserted by No. 63/2003 s. 5(1), amended by No. 20/2015 s. 7.

S. 3(1) def. of section 36V exclusion order inserted by No. 68/2010 s. 35(1).

S. 3(1) def. of section 40B exclusion order inserted by No. 68/2010 s. 35(1).

S. 3(1) def. of section 40S exclusion order inserted by No. 79/2014 s. 4(f).

S. 3(1) def. of section 40ZD exclusion order inserted by No. 79/2014 s. 4(f).

S. 3(1) def. of seizure warrant inserted by No. 63/2003 s. 5(1).

serious criminal activity has the meaning given in section 7C;

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) (inciting)—where the offence that is incited is an offence specified in paragraph (a) or (b);

(e) section 80(3)(b) (aiding, abetting etc. an offence outside Victoria)—where the offence that is aided, abetted, counselled or procured is an offence that, if committed in Victoria, would be 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);

16

S. 3(1) def. of serious criminal activity inserted by No. 79/2014 s. 4(f).

S. 3(1) def. of serious drug offence inserted by No. 55/2014 s. 17(c), amended by No. 79/2014 s. 61(1).

S. 3(1) def. of serious drug offence restraining order inserted by No. 55/2014 s. 17(c).

serious drug offender means a person declared under section 89DI of the Sentencing Act 1991 to be a serious drug offender;

spouse of a person means a person to whom that person is married;

sufficient consideration, in relation to property, means consideration that reflects the market value of the property and does not include—

(a) consideration arising from the fact of a family relationship between the transferor and transferee;

(b) if the transferor is the spouse or domestic partner of the transferee, the making of a deed in favour of the transferee;

(c) a promise by the transferee to become the spouse or domestic partner of the transferor;

(d) consideration arising from love and affection;

(e) transfer by way of gift;

tainted property means—

(a) in the case of civil forfeiture, a civil forfeiture restraining order, a civil forfeiture order or a civil forfeiture exclusion order, property that—

(i) was used, or was intended to be used in, or in connection with, the commission of one or more Schedule 2 offences; or

17

S. 3(1) def. of serious drug offender inserted by No. 55/2014 s. 17(c).

S. 3(1) def. of spouse inserted by No. 42/2007 s. 4(1).

S. 3(1) def. of sufficient consideration inserted by No. 42/2007 s. 4(3).

S. 3(1) def. of tainted property amended by Nos 63/2003 s. 4(5)(a)(b), 104/2003 s. 5(3), 42/2007 s. 4(2), 68/2009 s. 97(Sch. item 23.6), substituted by No. 68/2010 s. 35(5), amended by Nos 55/2014 s. 3, 27/2016 s. 4(1), 38/2017 s. 76.

(ii) was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i); or

(iii) was derived or realised, or substantially derived or realised, directly or indirectly, from the commission of one or more Schedule 2 offences; or

(iiia) is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using property referred to in subparagraph (i), (ii) or (iii); or

(iv) is likely to be used, or intended to be used in, or in connection with, the future commission of one or more Schedule 2 offences; or

(b) in any other case, property that, in relation to an offence—

(i) was used, or was intended by the accused to be used in, or in connection with, the commission of the offence; or

(ii) was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i); or

(iii) was derived or realised, or substantially derived or realised, directly or indirectly, by any person from the commission of the offence; or

18

(iv) is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using property referred to in subparagraph (i), (ii) or (iii); or

(c) in a case specified in either paragraph (a) or paragraph (b), property that—

(i) in the case of an offence against section 194 of the Crimes Act 1958, is proceeds of crime within the meaning of section 193 of that Act; or

(ii) in the case of an offence against section 195 of the Crimes Act 1958, is referred to in that section; or

(iii) in the case of an offence against section 195A of the Crimes Act 1958, becomes an instrument of crime within the meaning of section 193 of that Act;

trustee means—

(a) a trustee company within the meaning of the Trustee Companies Act 1984;

(b) an official liquidator within the meaning of the Corporations Act;

unexplained wealth forfeiture means forfeiture under section 40ZA;

unexplained wealth forfeiture exclusion order means—

19

S. 3(1) def. of trustee amended by No. 44/2001 s. 3(Sch. item 21.1).

S. 3(1) def. of unexplained wealth forfeiture inserted by No. 79/2014 s. 4(f).

S. 3(1) def. of unexplained wealth forfeiture exclusion order inserted by No. 79/2014 s. 4(f).

(a) a section 40S exclusion order; or

(b) a section 40ZD exclusion order;

unexplained wealth restraining order means an order under section 40I;

unlawful activity means an act or omission that constitutes an offence against a law in force in the Commonwealth, Victoria or another State, a Territory or a foreign country punishable by imprisonment;

Victoria Legal Aid means Victoria Legal Aid established under the Legal Aid Act 1978.

(2) If under the Public Administration Act 2004 the name of the Department of Justice and Regulation is changed, the reference in subsection (1) in the definition of Secretary to that Department must, from the date when the name is changed, be treated as a reference to the Department by its new name.

(3) For the purposes of the definition of domestic partner in subsection (1)—

(a) registered relationship has the same meaning as in the Relationships Act 2008; and

(b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the

20

S. 3(1) def. of unexplained wealth restraining order inserted by No. 79/2014 s. 4(f).

S. 3(1) def. of unlawful activity amended by No. 43/1998 s. 7.

S. 3(2) inserted by No. 63/2003 s. 5(2), amended by Nos 108/2004 s. 117(1) (Sch. 3 item 38), 20/2015 s. 7.

S. 3(3) inserted by No. 42/2007 s. 4(4), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 7.2).

Relationships Act 2008 as may be relevant in a particular case; and

(c) a person is not a domestic partner of another person only because they are co-tenants.

(4) For the purposes of the definition of account in subsection (1), it is immaterial whether—

(a) an account is closed; or

(b) an account has a nil balance; or

(c) any transactions have been allowed in relation to an account.

3A Objects

The main objects of this Act are—

(a) to deprive persons of the proceeds of certain offences and of tainted property; and

(b) to deter persons from engaging in criminal activity; and

(c) to disrupt criminal activity by preventing the use of tainted property in further criminal activity; and

(d) to undermine the profitability of serious criminal activity.

4 Meaning of conviction

(1) For the purposes of this Act, a person is deemed to have been convicted of an offence if—

(a) the person has been convicted of the offence; or

(b) the person has been charged with the offence and the court hearing the charge finds the person guilty of the offence but does not record a conviction; or

21

S. 3(4) inserted by No. 27/2016 s. 3(2).

S. 3A inserted by No. 68/2010 s. 5.

S. 3A(c) amended by No. 79/2014 s. 5(a).

S. 3A(d) inserted by No. 79/2014 s. 5(b).

(c) the offence was taken into account by a court under section 100 of the Sentencing Act 1991 in sentencing the person for another offence; or

(d) the person has been charged with the offence but, before the charge is finally determined, the person absconds.

(2) For the purposes of this Act, a person who, because of subsection (1), is deemed to have been convicted of an offence, is deemed to have committed that offence.

5 Meaning of absconds

For the purposes of this Act, a person is deemed to abscond if—

(a) the person is charged with an offence but dies without the charge having been determined; or

(b) the person is charged with an offence, a warrant to arrest the person is issued in relation to that charge and one of the following occurs—

(i) the person dies without the warrant being executed; or

(ii) at the end of the period of 6 months commencing on the day on which the warrant is issued—

(A) the person cannot be found; or

(B) the person is, for any other reason, not amenable to justice and, if the person is outside Victoria, extradition proceedings are not on foot; or

22

(iii) at the end of the period of 6 months commencing on the day on which the warrant is issued—

(A) the person is, by reason of being outside Victoria, not amenable to justice; and

(B) extradition proceedings are on foot—

and subsequently those proceedings terminate without an order for the person's extradition being made—

and either—

(c) the person was committed for trial for the offence; or

(d) a court makes an order that the evidence is of sufficient weight to support a conviction for the offence.

6 Meaning of setting aside a conviction

For the purposes of this Act, a conviction is deemed to have been set aside—

(a) where the person is deemed to have been convicted by reason of section 4(1)(a)—if the conviction is set aside or a free pardon is granted by the Governor; or

(b) where the person is deemed to have been convicted by reason of section 4(1)(b)—if the finding of guilt is set aside; or

23

S. 6 (Heading) inserted by No. 68/2009 s. 97(Sch. item 23.7).S. 6 amended by No. 68/2009 s. 97(Sch. item 23.8(a)).

S. 6(a) amended by No. 68/2009 s. 97(Sch. item 23.8(b)).

S. 6(b) amended by No. 68/2009 s. 97(Sch. item 23.8(b)).

(c) where the person is deemed to have been convicted by reason of section 4(1)(c)—if the decision of the court to take the offence into account is set aside.

7 Meaning of charged with an offence

(1) For the purposes of this Act, a person is deemed to have been charged with an offence if—

(a) an indictment has been filed against the person for the offence; or

(b) a charge has been filed against the person for the offence—

whether or not—

(i) a summons to answer to the charge; or

(ii) a warrant to arrest the person—

has been issued and served.

(2) A reference in this Act to the withdrawing of a charge includes a reference to the discontinuance of a prosecution.

7A Meaning of derived property—civil forfeiture

(1) In relation to civil forfeiture, a civil forfeiture restraining order, a civil forfeiture order or a civil forfeiture exclusion order, derived property means—

(a) property used in, or in connection with, any unlawful activity; or

(b) property derived or realised, or substantially derived or realised, directly or indirectly, from any unlawful activity; or

(c) property derived or realised, or substantially derived or realised, directly or indirectly,

24

S. 6(c) amended by No. 68/2009 s. 97(Sch. item 23.8(b)).

S. 7(1)(a) substituted by No. 68/2009 s. 97(Sch. item 23.9).

S. 7(2) amended by No. 68/2009 s. 97(Sch. item 23.10).

S. 7A (Heading) amended by Nos 79/2014 s. 6(1), 27/2016 s. 5(1).

S. 7A inserted by No. 68/2010 s. 36, amended by Nos 79/2014 s. 6(2), 27/2016 s. 5(2)(3) (ILA s. 39B(1)).

from property of a kind referred to in paragraph (a) or (b).

Note

Property is defined as including any interest in property. See definition in section 3.

(2) Without limiting subsection (1), property is derived from property of a kind referred to in subsection (1)(a) or (b) if it is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using property of a kind referred to in subsection (1)(a), (b) or (c).

7B Meaning of derived property—other cases

(1) In any case other than that referred to in section 7A, derived property means—

(a) property used in, or in connection with, any unlawful activity by—

(i) the accused; or

(ii) the applicant for an exclusion order; or

(b) property derived or realised, or substantially derived or realised, directly or indirectly, from any unlawful activity by—

(i) the accused; or

(ii) the applicant for an exclusion order; or

(c) property derived or realised, or substantially derived or realised, directly or indirectly,

25

S. 7A(2) inserted by No. 27/2016 s. 5(3).

S. 7B inserted by No. 68/2010 s. 36, amended by No. 27/2016 s. 6 (ILA s. 39B(1)).

from property of a kind referred to in paragraph (a) or (b).

Note

Property is defined as including any interest in property. See definition in section 3.

(2) Without limiting subsection (1), property is derived from property of a kind referred to in subsection (1)(a) or (b) if it is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using property of a kind referred to in subsection (1)(a), (b) or (c).

7C Meaning of serious criminal activity

For the purposes of this Act, serious criminal activity means—

(a) an act or omission or a course of conduct done or occurring in Victoria that constitutes one or more of the following—

(i) a Schedule 2 offence;

(ii) any other offence that is punishable by a term of imprisonment of 5 years or more and involves theft, fraud, obtaining financial benefit from the crime of another, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, sex work, production or distribution of child abuse material, drug cultivation, drug trafficking, forgery or homicide;

(iia) an offence against section 51E(1), 51F(1) or 51I(1) of the Crimes Act 1958;

26

S. 7B(2) inserted by No. 27/2016 s. 6.

S. 7C inserted by No. 79/2014 s. 7.

S. 7C(a)(ii) amended by No. 47/2016 s. 35(1).

S. 7C(a)(iia) inserted by No. 42/2015 s. 24, amended by No. 47/2016 s. 35(2).

(iii) an offence against section 7C, 59, 93, 94 or 96 of the Firearms Act 1996;

(iv) an offence against section 195 of the Crimes Act 1958;

(v) an offence of attempting to commit, or of conspiracy or incitement to commit, any offence referred to in the above paragraphs;

(vi) an offence against a law of the Commonwealth punishable by a term of imprisonment of 5 years or more that involves anything referred to in subparagraph (ii); or

(b) an act or omission or a course of conduct done or occurring in another jurisdiction that—

(i) constitutes an offence in that other jurisdiction; and

(ii) if done or occurring in Victoria, would constitute an offence referred to in paragraph (a).

8 Related offences

For the purposes of this Act, two offences are related to one another if they are founded on the same facts or form or are part of a series of offences of the same or a similar character.

9 Effective control of property

(1) For the purposes of this Act, property may be subject to the effective control of a person whether or not the person has an interest in it.

27

S. 8 amended by No. 43/1998 s. 8.

(2) In determining whether or not property is subject to the effective control of a person or whether or not there are reasonable grounds to believe that it is, regard may be had to—

(a) shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property; and

(b) a trust that has a relationship to the property; and

(c) family, domestic, business or other relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (a) or trusts of the kind referred to in paragraph (b), and other persons.

10 Property in which the accused has an interest

For the purposes of an application under this Act in relation to an offence, property in which the accused has an interest includes—

(a) any property that is, on the day when the first application is made under this Act in respect of that offence, subject to the effective control of the accused; and

(b) any property that was the subject of a gift from the accused to another person—

(i) within the period of 6 years before the first application made under this Act in respect of that offence; and

(ii) at any time if the application is made for the purposes of automatic forfeiture.

28

S. 10 (Heading) inserted by No. 68/2009 s. 97(Sch. item 23.11).S. 10 amended by No. 68/2009 s. 97(Sch. item 23.12).

S. 10(a) amended by No. 68/2009 s. 97(Sch. item 23.12).

S. 10(b) amended by No. 68/2009 s. 97(Sch. item 23.12).

S. 10(b)(ii) amended by No. 68/2010 s. 37.

11 Meaning of dealing with property

For the purposes of this Act, dealing with property of a person includes—

(a) if a debt is owed to that person, making a payment to any person in reduction of the amount of the debt; and

(b) removing the property from Victoria; and

(c) receiving or making a gift of the property; and

(d) creating or assigning an interest in the property; and

(e) using the property to obtain or extend credit; and

(f) using credit secured against the property.

Note

Property is defined as including any interest in property: see section 3(1).

12 Jurisdiction

(1) The jurisdiction given to the Children's Court by this Act is exercisable by the Criminal Division of that Court.

29

S. 11(d) amended by No. 43/1998 s. 9.

S. 11(e) inserted by No. 43/1998 s. 9.

S. 11(f) inserted by No. 43/1998 s. 9.

Note to s. 11 inserted by No. 42/2007 s. 18(Sch. item 1).

(1A) Despite the jurisdictional limit of the Magistrates' Court in civil proceedings, the Magistrates' Court may make a freezing order in respect of an account held with a financial institution, irrespective of the amount held in that account.

(2) The Magistrates' Court or the Children's Court must not make a restraining order or a forfeiture order in respect of real property.

(2A) The Magistrates' Court or the Children's Court must not make an unexplained wealth restraining order in respect of real property.

(3) The Magistrates' Court or the Children's Court must not, in relation to a particular offence, make a restraining order in respect of property unless it is satisfied that the value of the property (together with the value of any other property in respect of which a restraining order has been granted in relation to that offence) does not exceed the jurisdictional limit of the Magistrates' Court in civil proceedings, other than proceedings in which damages are claimed that consist of or include damages in respect of personal injury.

(4) The Magistrates' Court or the Children's Court must not, in relation to the conviction of an accused for a particular offence, make a forfeiture order in respect of property unless it is satisfied that the value of the property (together with the value of any other property that is the subject of any other undischarged forfeiture order made by that court in relation to that conviction) does not exceed the jurisdictional limit of the Magistrates' Court in civil proceedings, other than proceedings in which damages are claimed that consist of or include damages in respect of personal injury.

(5) The Magistrates' Court or the Children's Court must not, in relation to the conviction of an accused for a particular offence, make a pecuniary

30

S. 12(1A) inserted by No. 63/2003 s. 6.

S. 12(2A) inserted by No. 79/2014 s. 8(1).

S. 12(4) amended by Nos 87/2004 s. 6(1), 68/2009 s. 97(Sch. item 23.13), 27/2016 s. 7.

S. 12(5) amended by Nos 87/2004 s. 6(1), 68/2009 s. 97(Sch. item 23.14), 27/2016 s. 7.

penalty order against the accused unless it is satisfied that the amount payable under the order (together with the amount payable under any other undischarged pecuniary penalty order made against the accused by that court in relation to that conviction) does not exceed the jurisdictional limit of the Magistrates' Court in civil proceedings, other than proceedings in which damages are claimed that consist of or include damages in respect of personal injury.

(5A) The Magistrates' Court or the Children's Court must not make an unexplained wealth restraining order in respect of property unless it is satisfied that the value of the property does not exceed the jurisdictional limit of the Magistrates' Court in civil proceedings, other than proceedings in which damages are claimed that consist of or include damages in respect of personal injury.

(6) If a person was convicted before the Magistrates' Court or the Children's Court and that court does not have jurisdiction to make a restraining order, forfeiture order or pecuniary penalty order because of the value of the property or the amount payable, then the Supreme Court and the County Court have jurisdiction.

(7) For the purposes of this section, the value of property is its value as determined by the court hearing the application.

(8) The County Court has jurisdiction under this Act to make any order, other than an order under section 141A, irrespective of the value of the property or the amount payable.

(9) The Magistrates' Court and the Children's Court do not have jurisdiction to make a civil forfeiture restraining order, a civil forfeiture exclusion order or a civil forfeiture order.

Note

31


S. 12(6) amended by No. 63/2003 s. 7.

S. 12(8) amended by Nos 87/2004 s. 6(2), 68/2010 ss 6, 38(1).

S. 12(9) inserted by No. 68/2010 s. 38(2).



13 Act to bind Crown

(1) This Act binds the Crown not only in right of Victoria but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

(2) Nothing in this Act renders the Crown in any of its capacities liable to be prosecuted for an offence.

32

Part 2—Restraining orders other than civil forfeiture restraining orders and unexplained

wealth restraining orders14 Restraining orders

(1) A restraining order is an order that no property or interest in property, that is property or an interest to which the order applies, is to be disposed of, or otherwise dealt with by any person except in the manner and circumstances (if any) specified in the order.

(2) If a provision of this Act confers a power to apply for a restraining order in respect of property in which a person has an interest, the application may be made in respect of one or more of the following—

(a) specified property of the person;

(b) all the property of the person, including property acquired after the making of the order;

(c) specified property of the person and all other property of the person, including property acquired after the making of the order;

(d) all the property of the person, including property acquired after the making of the order, other than specified property;

(e) specified property of another person.

(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;

Pt 2 (Heading) amended by Nos 68/2010 s. 39, 79/2014 s. 9.

S. 14(3) substituted by No. 55/2014 s. 54.

Part 1—Preliminary


33

(b) a person holding a prescribed position within the Department of Justice and Regulation.

(4) A restraining order may, at the time it is made or at a later time, provide for meeting—

(a) the reasonable living expenses (including the reasonable living expenses of any dependants); and

(b) reasonable business expenses—

of any person to whose property the order applies if the court that makes or made the order is satisfied that these expenses cannot be met from unrestrained property or income of the person.

(5) A court, in making a restraining order, must not provide for the payment of legal expenses in respect of any legal proceeding, whether criminal or civil, and whether in respect of a charge to which the restraining order relates or otherwise.

(6) Subject to subsections (4) and (5), a restraining order may be made subject to any conditions that the court thinks fit.

(7) The court may refuse to make a restraining order if the DPP or another person or body on behalf of the State refuses or fails to give to the court any undertakings that the court considers appropriate concerning the payment of damages or costs in relation to the making and operation of the order.

15 Purposes for which a restraining order may be made

(1) A restraining order may be made to preserve property or an interest in property in order that the property or interest will be available for any one or more of the following purposes—

(a) to satisfy any forfeiture order that may be made under Division 1 of Part 3;

S. 14(3)(b) amended by No. 20/2015 s. 7.

S. 14(7) amended by No. 43/1998 s. 10.

S. 15(1) amended by No. 42/2007 s. 18(Sch. item 3).



34

(b) to satisfy automatic forfeiture of property that may occur under Division 2 of Part 3;

(c) to satisfy automatic forfeiture of property that may occur under Division 4 of Part 3;

(d) to satisfy any pecuniary penalty order that may be made under Part 8;

(e) to satisfy any order for restitution or compensation that may be made under the Sentencing Act 1991.

(2) An application for a restraining order must state the purpose for which it is sought.

(3) If a court makes a restraining order in respect of property or an interest in property—

(a) the court must state in the order the purpose for which the property or interest is restrained; and

(b) if the court excludes property or an interest in property from the order in respect of a purpose, the court must state in the order whether the property or interest remains restrained for any other purpose and, if so, state that other purpose.

* * * * *

Note

Section 26 enables the court to make orders varying the property to which the restraining order relates.

S. 15(1)(c) repealed by No. 68/2010 s. 40(1), new s. 15(1)(c) inserted by No. 55/2014 s. 18.

S. 15(4) inserted by No. 87/2004 s. 7, repealed by No. 68/2010 s. 40(2).



35

15A Property may be subject to both restraining order and other orders

(1) In addition to being subject to a restraining order under this Part, property or an interest in property may be subject to either or both of the following—

(a) a civil forfeiture restraining order;

(b) an unexplained wealth restraining order.

(2) If a restraining order under this Part made for the purposes of section 15(1)(a), (b) or (c) and a civil forfeiture restraining order or an unexplained wealth restraining order (or both) 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 the following—

(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 property or interest in property;

(b) the property being able to be disposed of in accordance with section 44(2) because unexplained wealth forfeiture of the property or interest in property has occurred under section 40ZA;

(c) the restraining order ceasing to operate or being set aside in whole or in relation to the property or interest in property under section 27;

(d) the property or interest in property being excluded from the operation of the restraining order by an exclusion order.

S. 15A inserted by No. 55/2014 s. 19, substituted by No. 79/2014 s. 10.



36

16 Application for restraining order

(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 accused has an interest or which is tainted property in relation to that offence.

(2) If any of the circumstances specified in subsection (2AA) apply in relation to property—

(a) the DPP, a prescribed person or a person belonging to a prescribed class of persons 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 the property.

(2AA) An application for a restraining order under subsection (2) may be made in respect of property if—

(a) a police officer 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

S. 16(1) substituted by No. 87/2004 s. 8(1), amended by No. 68/2009 s. 97(Sch. item 23.15).

S. 16(2) substituted by No. 87/2004 s. 8(1), amended by Nos 68/2010 s. 41(1), 37/2014 s. 10(Sch. item 25.2(a)), substituted by No. 27/2016 s. 8.

S. 16(2AA) inserted by No. 27/2016 s. 8.



37

(ii) that person has an interest in the property or the property is tainted property in relation to that offence; or

(b) 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

(c) 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) 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.

(3) An application under subsection (2) or (2A) for the purposes of automatic forfeiture may only be made before the end of the relevant period in relation to the conviction.

S. 16(2A) inserted by No. 87/2004 s. 8(1), repealed by No. 68/2010 s. 41(1), new s. 16(2A) inserted by No. 55/2014 s. 20(1).

S. 16(3) amended by Nos 87/2004 s. 8(2), 55/2014 s. 20(2).



38

(4) An application under subsection (1), (2) or (2A) must be supported by an affidavit of—

(a) a police officer; or

(b) a person authorised by or under an Act to prosecute the relevant type of offence—

setting out any relevant matters and stating that the police officer or person believes the following matters and setting out the grounds on which the police officer or person holds those beliefs—

(c) in the case of an application made in reliance on the proposed charging of the accused with an offence, that the accused will be so charged within the next 48 hours; and

(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

(e) if the restraining order is being sought for a purpose referred to in paragraph (a), (d) or (e) of section 15(1), that—

S. 16(4) amended by Nos 87/2004 s. 8(3), 37/2014 s. 10(Sch. item 25.2(b)(ii)), 55/2014 s. 20(3)(a).

S. 16(4)(a) substituted by No. 37/2014 s. 10(Sch. item 25.2(b)(i)).

S. 16(4)(c) amended by No. 68/2009 s. 97(Sch. item 23.16).

S. 16(4)(d) amended by No. 68/2009 s. 97(Sch. item 23.16), substituted by No. 55/2014 s. 20(3)(b).



39

(i) a forfeiture order may be made in respect of the property; or

(ii) a pecuniary penalty order may be made against the accused; or

(iii) an order for restitution or compensation may be made under the Sentencing Act 1991.

(5) An application for a civil forfeiture restraining order or an unexplained wealth restraining order in relation to property or an interest in property does not preclude an application under this section in relation to the same property or interest in property.

(6) An application under subsection (1), (2) or (2A) in relation to property or an interest in property may be made more than once, whether on the same grounds or different grounds, for any purpose referred to in section 15(1).

(7) An application under subsection (1) in relation to property or an interest in property does not preclude an application under subsection (2) or (2A) in relation to the same property or interest in property.

(8) An application under subsection (2) in relation to property or an interest in property does not preclude an application under subsection (1) or (2A) in relation to the same property or interest in property.

(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.

S. 16(4)(e)(ii) amended by No. 68/2009 s. 97(Sch. item 23.16).

S. 16(5) inserted by No. 87/2004 s. 8(4), substituted by No. 68/2010 s. 41(2), amended by No. 79/2014 s. 11.

S. 16(6) inserted by No. 68/2010 s. 7, amended by No. 55/2014 s. 20(4).



S. 16(9) inserted by No. 55/2014 s. 20(7).



40

17 Procedure on application

(1) If, having regard to the matters referred to in subsection (1A), the court is satisfied that the circumstances of the case justify the giving of notice to a person affected, the court may direct an applicant under section 16(1), (2) or (2A) to give notice of the application to any person whom the court has reason to believe has an interest in the property that is the subject of the application.

(1A) In determining whether the circumstances of the case justify the giving of notice, the court must have regard to—

(a) the aim of preserving the property that is the subject of the application so as to ensure its availability for the purpose for which the restraining order is sought; and

(b) any jeopardy to an investigation by a law enforcement agency into criminal activity that could result from the giving of notice; and

(c) any risk to the safety or security of a person, including a potential witness in any criminal proceeding, that could result from the giving of notice; and

(d) the provision made by this Act to enable a person claiming an interest in property the subject of a restraining order to apply for an exclusion order to protect that interest from the operation of the restraining order; and

(e) the limited duration of a restraining order; and

(f) the submissions, if any, made by the applicant in relation to the giving of notice.

(1B) In determining whether to direct an applicant to give notice of an application under section 16(1),

S. 17(1) amended by No. 87/2004 s. 8(5), substituted by No. 79/2006 s. 10, amended by No. 55/2014 s. 21.


S. 17(1B) inserted by No. 79/2006 s. 10, amended by No. 55/2014 s. 21.



41

(2) or (2A), the court may have regard to any other matter that the court considers relevant.

(1C) If the court does not require notice of an application under section 16(1), (2) or (2A) to be given under subsection (1), it may hear and determine the application in the absence of any person who has an interest in the property that is the subject of the application.

(2) Any person notified under subsection (1) 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 a restraining order.

(3) The court may—

(a) order that the whole or any part of the proceeding be heard in closed court; or

(b) order that only persons or classes of persons specified by it may be present during the whole or any part of the proceeding; or

(c) make an order prohibiting the publication of a report of the whole or any part of the proceeding or of any information derived from the proceeding.

(4) The court must cause a copy of any order made under subsection (3) to be posted on a door of the court house or in another conspicuous place where notices are usually posted at the court house.

(5) A person must not contravene an order posted under subsection (4).

Penalty:Imprisonment for 12 months or 1000 penalty units.

18 Determination of application

S. 17(1C) inserted by No. 79/2006 s. 10, amended by No. 55/2014 s. 21.

S. 18 amended by Nos 43/1998 s. 11, 87/2004 s. 9(1)(a)(b)(2) (ILA s. 39B(1)).



42

(1) On an application under section 16(1), (2) or (2A), the court must make a restraining order if it is satisfied that the accused—

(a) has been, or within the next 48 hours will be, charged with; or

(b) has been convicted of—

a Schedule 1 offence, a Schedule 2 offence or a serious drug offence (as the case may be) and—

(c) it considers that, having regard to the matters contained in the affidavit supporting the application and to any other sworn evidence before it, there are reasonable grounds for making the restraining order; and

(d) if the restraining order is being sought for a purpose referred to in section 15(1)(e), it is satisfied that—

(i) applications have been, or are likely to be, made for restitution or compensation under the Sentencing Act 1991 in respect of the Schedule 1 offence or Schedule 2 offence; and

(ii) the order of the court under the Sentencing Act 1991 is likely to exceed $10 000.

* * * * *

19 Notice of restraining order to be given to persons affected

S. 18(1) amended by Nos 68/2009 s. 97(Sch. item 23.17), 55/2014 s. 22.

S. 18(1)(d)(i) amended by No. 87/2004 s. 9(1)(c).

S. 18(2) inserted by No. 87/2004 s. 9(2), repealed by No. 68/2010 s. 41(3).



43

(1) If—

(a) a restraining order is made in respect of property of a person; and

(b) notice had not been given to that person of the application for the order—

the applicant must give written notice of the making of the order to that person.

(2) If a person to whom notice must be given under subsection (1) cannot be found after all reasonable steps have been taken to locate the person, the applicant must cause to be published in a newspaper circulating generally in Victoria a notice containing details of the restraining order or give notice to that person in any other manner that the court directs.

Note

Section 14 provides that a restraining order may be made in respect of property or an interest in property.

19A Notice requiring declaration of property interests

(1) If a restraining order is made in respect of property, a police officer must give a notice to each person who the applicant for the restraining order believes has an interest in that property requiring the person to give to the police officer a written declaration of property interests.

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

(a) be in the prescribed form; and

(b) state the effect of section 19C.

19B What must be included in a declaration of property interests?



S. 19A(1) amended by No. 37/2014 s. 10(Sch. item 25.3).

S. 19B inserted by No. 63/2003 s. 8.



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(1) A person who has been given a notice under section 19A must provide a written declaration of property interests that states whether that person—

(a) has an interest in the property; and

(b) believes that any other person has an interest in the property.

(1A) If the person making the declaration of property interests states that the person has an interest in the property, the person must also state in the declaration the nature and extent of that interest, including—

(a) in relation to a mortgage, the current value of the debt secured by the mortgage;

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

(2) If the person making the declaration of property interests believes that any other person has an interest in the property, the person making the declaration must state in the declaration to the best of his or her knowledge the name and address of every other person who has an interest in the property.Notes

1 An interest in property is defined in section 3(1) as meaning—


(b) a right, power or privilege over, or in connection with, the property.

S. 19B(1A) inserted by No. 68/2010 s. 8(1).

S. 19B(2) amended by No. 68/2010 s. 8(2).

Notes to s. 19B inserted by No. 68/2010 s. 8(3).



45

2 The nature of an interest in land, for example, may be an interest in fee simple, a leasehold interest or a security interest such as a mortgage.

3 The extent of an interest, for example, may be the whole of the property or some lesser specified interest, such as a half-interest as a tenant in common.

19C Offences

(1) A person who is given a notice under section 19A must not, without reasonable excuse, fail to give the declaration of property interests required by that notice to a police officer within 14 days after the notice is given to the person.

Penalty:Level 9 fine (60 penalty units maximum).

(2) A person who is given a notice under section 19A must not make a statement in the declaration of property interests required by that notice that is false or misleading in a material particular.


19D Court directions to provide information

(1) If a person who has been given a notice under section 19A—

(a) is convicted of an offence under section 19C(1) or (2); and

(b) has not, prior to that conviction, provided the information that should have been provided in a declaration of property interests as required by the notice under section 19A—


S. 19C(1) amended by No. 37/2014 s. 10(Sch. item 25.3).

S. 19D inserted by No. 63/2003 s. 8.



46

the court which convicts that person must direct the person to provide the court with the information that should have been provided in a declaration of property interests.

(2) If a person who has been given a notice under section 19A—

(a) is convicted of the Schedule 1 offence, Schedule 2 offence or serious drug offence in relation to which the restraining order was made; and

(b) has not, prior to that conviction, provided the information that should have been provided in a declaration of property interests as required by the notice under section 19A; and

(c) does not have a reasonable excuse for failing to provide the information in a declaration of property interests required by the notice under section 19A—

the court which convicts that person must direct the person to provide the court with the information that should have been provided in the declaration of property interests.

19E Admissibility of statement

(1) A statement made by a person in a declaration of property interests given in response to a notice under section 19A is admissible against that person in—

(a) a proceeding for making a false or misleading statement in the declaration; or

(b) any proceeding under this Act—

S. 19D(2)(a) amended by Nos 87/2004 s. 22(1)(a), 55/2014 s. 23.

S. 19E inserted by No. 63/2003 s. 8, amended by No. 68/2010 s. 12 (ILA s. 39B(1)).

S. 19E(b) substituted by No. 104/2003 s. 5(4).



47

but is not otherwise admissible in evidence against that person.

(2) Any information, document or other thing obtained as a direct or indirect consequence of making a statement in a declaration of property interests given in response to a notice under section 19B is admissible against that person in—




20 Application for exclusion from restraining order

(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.

(1A) An application under subsection (1) must be made—

(a) if notice is required to be given under section 19(1), within 30 days after service of

S. 19E(2) inserted by No. 68/2010 s. 12.

S. 20(1) amended by Nos 68/2009 s. 97(Sch. item 23.18), 68/2010 s. 42, substituted by No. 55/2014 s. 24(1).




48

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) Subject to subsection (1C), 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.

(1C) The court may not extend the period within which an application may be made in respect of property that has been forfeited by or under this Act.

(2) An applicant must give notice of the application, and, subject to subsection (6), of the grounds on which it is made—

(a) to the applicant for the restraining order; and

(b) to any other person whom the applicant has reason to believe has an interest in the property.

(2A) An application for an exclusion order must include documentary evidence of any transactions relating to the transfer of property alleged by the applicant to have occurred that would support the application.

(3) Any person referred to in subsection (2) is entitled to appear and to give evidence at the hearing of an application for an order under section 21, 22 or 22A but the absence of that person does not prevent the court from making an order under section 21, 22 or 22A.

(4) If the person referred to in subsection (2)(a) proposes to contest an application for an exclusion order, that person must give the applicant notice of the grounds on which the application is to be contested.

S. 20(1B) inserted by No. 87/2004 s. 10(1), amended by No. 77/2013 s. 3(1).

S. 20(1C) inserted by No. 77/2013 s. 3(2).

S. 20(2) amended by No. 87/2004 s. 10(2).


S. 20(3) amended by Nos 68/2010 s. 42, 55/2014 s. 24(2).



49

(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 any other 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.

(5A) 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 any other offence—

any information, document or thing obtained as a direct or indirect consequence of 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

S. 20(5) inserted by No. 87/2004 s. 10(3).

S. 20(5)(b) amended by No. 68/2010 s. 13(2)(a).


S. 20(6) inserted by No. 87/2004 s. 10(3).

S. 20(6)(a) amended by No. 68/2010 s. 13(2)(b).



50

Schedule 1 offence or a Schedule 2 offence; and

(b) a person claiming an interest in the property is charged with the offence or a related offence; and

(c) that person applies for an order under section 21 or 22—

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 subsection (2) may apply to the court for an order that the hearing of the application for an order under section 21, 22 or 22A be stayed until the charge for the offence in relation to which the restraining order is made or for any related offence is finally determined or is withdrawn.Notes

1 Section 14 provides that a restraining order may be made in respect of property or an interest in property.

2 Section 26 enables the court to make orders varying the property to which the restraining order relates.

21 Determination of exclusion application—restraining order—Schedule 1 offence

(1) On an application made under section 20, where the restraining order has been made in relation to a Schedule 1 offence (other than for a purpose referred to in section 15(1)(b))—

(a) if the court is satisfied that the property in which the applicant claims an interest—

(i) is not tainted property; and

S. 20(6)(b) amended by No. 68/2010 s. 13(2)(c).

S. 20(6)(c) amended by No. 68/2010 s. 42.

S. 20(7) inserted by No. 87/2004 s. 10(3), amended by Nos 68/2010 s. 42, 55/2014 s. 24(3).

Note to s. 20 substituted by No. 42/2007 s. 18(Sch. item 5).

S. 21 amended by Nos 87/2004 s. 22(1)(b), 68/2010 s. 14(1) (ILA s. 39B(1)), 68/2010 s. 43.

S. 21(a) amended by No. 42/2007 s. 5(1)(a).



51

(ii) will not be required to satisfy any purpose for which the restraining order was made—

the court may make an order excluding the applicant's interest in the property from the operation of the restraining order; or

(b) if the applicant is a person other than the accused and—

(i) the court is not satisfied as specified in paragraph (a)(i), the court may make an order excluding the applicant's interest in the property from the operation of the restraining order if satisfied that—

(A) the applicant was not, in any way, involved in the commission of the Schedule 1 offence; and

(B) where the applicant acquired the interest before the commission, or alleged commission, of the Schedule 1 offence, the applicant did not know that the accused would use, or intended to use, the property in, or in connection with, the commission of the Schedule 1 offence; and

(C) where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the Schedule 1 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

S. 21(b) amended by No. 68/2009 s. 97(Sch. item 23.19).

S. 21(b)(i) amended by No. 42/2007 s. 5(1)(b).

S. 21(b)(i)(A) amended by No. 87/2004 s. 22(1)(b).

S. 21(b)(i)(B) amended by Nos 87/2004 s. 22(1)(b), 68/2009 s. 97(Sch. item 23.19).

S. 21(b)(i)(C) amended by No. 87/2004 s. 22(1)(b).



52

(D) the applicant's interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 1 offence or the date that the restraining order was made in relation to the property; and

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

(ii) the court is satisfied as specified in paragraph (a)(i) but not satisfied as specified in paragraph (a)(ii), the court may make an order excluding the applicant's interest in the property from the operation of the restraining order if satisfied that—

(A) the applicant's interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 1 offence or the date that the restraining order was made in relation to the property; and

(B) 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.

S. 21(b)(i)(D) substituted by No. 42/2007 s. 5(2), amended by No. 68/2009 s. 97(Sch. item 23.19).

S. 21(b)(i)(E) amended by No. 68/2009 s. 97(Sch. item 23.19).

S. 21(b)(ii) amended by No. 42/2007 s. 5(1)(b).

S. 21(b)(ii)(A) substituted by No. 42/2007 s. 5(3), amended by No. 68/2009 s. 97(Sch. item 23.19).

S. 21(b)(ii)(B) amended by No. 68/2009 s. 97(Sch. item 23.19).

S. 21(2) inserted by No. 68/2010 s. 14(1).



53

22 Determination of exclusion application—restraining order in relation to Schedule 2 offence

(1) On an application made under section 20, where the restraining order has been made in relation to a Schedule 2 offence for the purposes of automatic forfeiture under section 35—

(a) the court may make an order excluding the applicant's interest in the property from the operation of the restraining order if the court is satisfied that—

(i) the property in which the applicant claims an interest was lawfully acquired by the applicant; and

(ii) the property is not tainted property and is not, or will not be, subject to a tainted property substitution declaration under section 36F; and

(iia) the property is not derived property; and

(iii) the property will not be required to satisfy any pecuniary penalty order or an order for restitution or compensation under the Sentencing Act 1991; or

S. 22 (Heading) amended by No. 27/2016 s. 9(1).

S. 22 amended by Nos 87/2004 s. 11(a), 68/2010 s. 14(3) (ILA s. 39B(1)).

S. 22(1) amended by No. 27/2016 s. 9(2).

S. 22(a) amended by Nos 43/1998 s. 39(a), 42/2007 s. 6(1)(a).

S. 22(a)(ii) substituted by No. 87/2004 s. 11(b), amended by No. 68/2010 s. 14(2) (as amended by No. 81/2011 s. 22(5)).S. 22(a)(iia) inserted by No. 42/2007 s. 6(2).



54

(b) where the application is made by a person other than the accused, the court may make an order excluding the applicant's interest in the property from the operation of the restraining order—

(i) if the court is not satisfied that the property in which the person claims an interest is not tainted property or derived 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 accused would use, or intended to use, the property 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 or derived property; and

(D) the applicant's interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 2 offence or the date that

S. 22(b) amended by Nos 42/2007 s. 6(1)(b), 68/2009 s. 97(Sch. item 23.20).S. 22(b)(i) amended by No. 42/2007 s. 6(3).

S. 22(b)(i)(A) amended by No. 87/2004 s. 11(c).

S. 22(b)(i)(B) amended by Nos 87/2004 s. 11(c), 68/2009 s. 97(Sch. item 23.20).

S. 22(b)(i)(C) amended by Nos 87/2004 s. 11(c), 42/2007 s. 6(3).

S. 22(b)(i)(D) substituted by No. 42/2007 s. 6(4), amended by No. 68/2009 s. 97(Sch. item 23.20).



55

the restraining order was made in relation to the property; and

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

(ii) if the court is satisfied that the property is not tainted property or derived property and that—

(A) the applicant's interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 2 offence or the date that the restraining order was made in relation to the property; and

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

(c) where the application is made by the executor or administrator of the estate of a deceased accused, the court may make an order excluding the applicant's interest in the property from the operation of the restraining order if the court is satisfied that—

(i) the accused is dead; and

(ii) there are reasonable grounds to believe that the interest claimed by the estate of the accused was lawfully acquired by the accused; and

S. 22(b)(i)(E) amended by No. 68/2009 s. 97(Sch. item 23.20).

S. 22(b)(ii) amended by No. 42/2007 s. 6(5)(a).

S. 22(b)(ii)(A) substituted by No. 42/2007 s. 6(5)(b), amended by No. 68/2009 s. 97(Sch. item 23.20).

S. 22(b)(ii)(B) amended by No. 68/2009 s. 97(Sch. item 23.20).

S. 22(c) amended by Nos 42/2007 s. 6(1)(c), 68/2009 s. 97(Sch. item 23.20).

S. 22(c)(i) amended by No. 68/2009 s. 97(Sch. item 23.20).

S. 22(c)(ii) amended by Nos 43/1998 s. 12, 68/2009 s. 97(Sch. item 23.20).



56

(iii) the property is not derived property; and

(iiia) the property is not tainted property and is not, or will not be, subject to a tainted property substitution declaration under section 36F; and

(iv) the property will not be required to satisfy any pecuniary penalty order or an order for restitution or compensation under the Sentencing Act 1991.

(1A) If the applicant alleges that transactions have occurred relating to the transfer of property that would support the application for the exclusion order, the court hearing the application may accept evidence other than documentary evidence of those transactions if—

(a) that other evidence is provided in addition to documentary evidence of the transaction; or

(b) the court is satisfied that it is not reasonable to expect documentary evidence to exist because of the nature of the transfer of property, the effluxion of time or any other reason.


Note

Property excluded from a restraining order made for the purpose of satisfying automatic forfeiture of property that may occur under Division 2 of Part 3 (i.e. automatic forfeiture on the conviction of an accused of certain offences) may continue to be restrained if a

S. 22(c)(iii) substituted by No. 42/2007 s. 6(6).

S. 22(c)(iiia) inserted by No. 42/2007 s. 6(6), amended by No. 68/2010 s. 14(2) (as amended by No. 81/2011 s. 22(5)).


S. 22(2) inserted by No. 68/2010 s. 14(3).

Note to s. 22 inserted by No. 27/2016 s. 9(3).



57

restraining order has also been made in relation to the property for the purpose referred to in section 15(1)(c).

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.


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).

23 Declaration that restraining order shall be disregarded for purposes of automatic forfeiture


S. 23 amended by No. 42/2007 s. 7(1).



58

If—

(a) in the circumstances set out in section 22(1)(a), the court is satisfied of the matters referred to in subparagraphs (i), (ii) and (iia); or

(b) in the circumstances set out in section 22(1)(c), the court is satisfied of the matters referred to in subparagraphs (i), (ii), (iii) and (iiia)—

but the interest is not excluded from the operation of the restraining order, the court may, by order, declare that the restraining order, to the extent to which it relates to the applicant's interest in the property, shall be disregarded for the purposes of section 35.Note

If the applicant's interest in property was restrained for the purposes of satisfying a pecuniary penalty order or an order for restitution or compensation under the Sentencing Act 1991, it continues to be so restrained despite the applicant's interest being unavailable for the purposes of automatic forfeiture.

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;

S. 23(a) amended by Nos 42/2007 s. 7(2)(a), 77/2013 s. 4(a).

S. 23(b) amended by Nos 42/2007 s. 7(2)(b), 77/2013 s. 4(b).


S. 24 amended by Nos 43/1998 s. 39(b), 87/2004 s. 12, 42/2007 s. 8, repealed by No. 68/2010 s. 44, new s. 24 inserted by No. 55/2014 s. 26.



59

(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



60

(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.

* * * * *

26 Further orders

(1) The court may, when it makes a restraining order or at any later time, make such orders in relation to the property to which the restraining order relates as it considers just.

(2) An order under subsection (1) may be made on the application of—

(a) the applicant for the restraining order; or

(b) the accused; or

(c) a person to whose property the restraining order relates or who has an interest in that property; or

(d) a trustee—if the restraining order directed the trustee to take control of property; or

(da) a prescribed person, or a person belonging to a prescribed class of persons; or

S. 25 repealed by No. 87/2004 s. 13.

S. 26(2)(b) amended by No. 68/2009 s. 97(Sch. item 23.21).

S. 26(2)(da) inserted by No. 43/1998 s. 13.



61

(e) any other person who obtains the leave of the court to apply.

(3) Any person referred to in subsection (2) is entitled to appear and to give evidence at the hearing of an application under this section but the absence of that person does not prevent the court from making an order.

(4) The applicant for an order under subsection (1) must give written notice of the application to each other person referred to in paragraphs (a) to (d) of subsection (2) who could have applied for the order.

(5) Examples of the kind of order that the court may make under subsection (1) are—

(a) an order varying the property to which the restraining order relates;

(b) an order varying any condition to which the restraining order is subject;

(c) an order providing for the reasonable living expenses and reasonable business expenses of any person referred to in section 14(4);

(d) an order relating to the carrying out of any undertaking given under section 14(7) in relation to the restraining order;

(e) an order for examination under Part 12;

(f) an order directing any person whose property the restraining order relates to or any other person to furnish to such person as the court directs, within the period specified in the order, a statement, verified by the oath or affirmation of that person, setting out such particulars of the property to which the restraining order relates as the court thinks proper;



62

(g) an order directing any relevant registration authority not to register any instrument affecting property to which the restraining order relates while it is in force except in accordance with the order;

(ga) if the restraining order did not direct a trustee or a person holding a prescribed position referred to in section 14(3) to take control of property in accordance with section 14(3), an order directing a trustee or a person holding a prescribed position referred to in that section to take control of property at any later time specified in the order under subsection (1);

(h) if the restraining order directed a trustee or a person holding a prescribed position referred to in section 14(3) to take control of property—

(i) an order regulating the manner in which the trustee or the person holding a prescribed position may exercise powers or perform duties under the restraining order;

(ii) an order determining any question relating to the property;

(i) an order directing a person to whose property the restraining order relates or who has an interest in that property to use or manage specified property to which the restraining order relates, subject to conditions specified in the order;

(j) an order directing a person prescribed for the purposes of subsection (2)(da), if that person so consents, to do any activity specified in the order that is reasonably necessary for the

S. 26(5)(ga) inserted by No. 63/2003 s. 9(1), amended by No. 55/2014 s. 55(1).

S. 26(5)(h) amended by No. 55/2014 s. 55(2)(a).

S. 26(5)(h)(i) amended by No. 55/2014 s. 55(2)(b).

S. 26(5)(h)(ii) amended by No. 63/2003 s. 9(2)(a).

S. 26(5)(i) inserted by No. 63/2003 s. 9(2)(b).

S. 26(5)(j) inserted by No. 63/2003 s. 9(2)(b).



63

purpose of managing specified property to which the restraining order relates.Example

The court may direct the carrying out of repairs on restrained premises.

Note


27 Duration and setting aside of restraining order

(1) If, at the end of the period of 48 hours after the making of a restraining order (other than a serious drug offence restraining order) in reliance on the proposed charging of an accused with a Schedule 1 offence or a Schedule 2 offence, the accused has not been charged with the offence or a related offence that is a Schedule 1 offence or a Schedule 2 offence, whether or not in the same Schedule as the original offence, the order ceases to be in force at the end of that period.

(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) If, when a restraining order (other than a serious drug offence restraining order) was made in reliance on the charging, or proposed charging, of an accused with a Schedule 1 offence or a


S. 27(1) amended by Nos 87/2004 s. 14(1)(a)(b), 68/2009 s. 97(Sch. item 23.22 (a)(b)), 55/2014 s. 27(1).

S. 27(2) amended by No. 43/1998 s. 14(1), substituted by No. 87/2004 s. 14(2), repealed by No. 68/2010 s. 45(1), new s. 27(2) inserted by No. 55/2014 s. 27(2).

S. 27(3) amended by Nos 87/2004 s. 14(3)(a), 68/2009 s. 97(Sch. item 23.22(a)), 55/2014 s. 27(3).



64

Schedule 2 offence or in reliance on the conviction of an accused of such an offence—

(a) the charge is withdrawn and the accused is not charged with a related offence that is a Schedule 1 offence or a Schedule 2 offence by the time of the withdrawal, whether or not in the same Schedule as the original offence, the restraining order ceases to be in force on the expiry of 7 days after the charge is withdrawn; or

(b) the accused is acquitted of the charge and the accused is not charged with a related offence that is a Schedule 1 offence or a Schedule 2 offence by the time of the acquittal, whether or not in the same Schedule as the original offence, the restraining order ceases to be in force when the acquittal occurs; or

* * * * *

(c) the conviction of the accused of the offence is subsequently set aside, the restraining order (other than one referred to in subsection (2)) 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.

(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

S. 27(3)(a) amended by Nos 87/2004 s. 14(3)(a), 68/2009 s. 97(Sch. item 23.22(b)).

S. 27(3)(b) amended by Nos 87/2004 s. 14(3)(a)(b), 68/2009 s. 97(Sch. item 23.22(b)).

S. 27(3)(ba) inserted by No. 43/1998 s. 14(2)(a), repealed by No. 87/2004 s. 14(3)(c).

S. 27(3)(c) amended by Nos 43/1998 s. 14(2)(b), 68/2009 s. 97(Sch. item 23.22 (b)(c)).




65

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.

(4) If, while a restraining order in respect of an interest in property is in force, a court makes a forfeiture order in respect of the interest or makes a pecuniary penalty order against the accused or makes an order for restitution or compensation under the Sentencing Act 1991, that court or the Supreme Court or the County Court may—

S. 27(3B) inserted by No. 55/2014 s. 27(4).

S. 27(3C) inserted by No. 55/2014 s. 27(4).

S. 27(4) amended by Nos 87/2004 s. 14(4), 68/2009 s. 97(Sch. item 23.22(b)), 68/2010 s. 45(2).



66

(a) make an order setting aside the restraining order in respect of the whole or a specified part of the interest; or

(b) make such other order or orders as it considers appropriate in relation to the operation of the restraining order.

(5) If a restraining order (other than a serious drug offence restraining order) is made for a purpose referred to in section 15(1) and, while the order is in force, a court refuses to make an order for that purpose, that court or the Supreme Court or the County Court may—

(a) make an order in relation to the purpose and period for which the restraining order is to remain in force; and

(b) make such other order or orders as it considers appropriate in relation to the operation of the restraining order.

(6) A court may make an order setting aside a restraining order (other than a serious drug offence restraining order) on the application of a person if the person—

(a) gives security satisfactory to the court for the payment of any pecuniary penalty that may be imposed on the person under Part 8; or

(b) gives undertakings satisfactory to the court concerning the person's property.

(7) An order under subsection (4), (5) or (6) may be made so as—

(a) to set aside the restraining order wholly or in part; and

(b) to take effect—


S. 27(6) amended by Nos 87/2004 s. 14(6)(a), 55/2014 s. 27(5).

S. 27(6)(a) amended by No. 87/2004 s. 14(6)(a).

S. 27(6)(b) amended by No. 87/2004 s. 14(6)(b).



67

(i) on the making of the first-mentioned order; or

(ii) at a specified time; or

(iii) if relevant, on the payment of money or the transfer of any interest in property to the Minister; or

(iv) on the happening of some other specified event—

and, when the first-mentioned order takes effect, the restraining order ceases to be in force to the extent to which it is set aside.

(8) An order under subsection (4), (5) or (6) may be made on the application of—


(b) the accused; or

(c) any person to whose property the restraining order relates or who has an interest in that property; or

(d) a trustee—if the restraining order directed the trustee to take control of property; or


(9) A court that makes a restraining order may make an order setting aside the restraining order if the

S. 27(7)(b)(iii) amended by Nos 43/1998 s. 36(a), 42/2007 s. 18(Sch. item 7).

S. 27(8)(b) amended by No. 68/2009 s. 97(Sch. item 23.22(b)).

S. 27(9) inserted by No. 68/2010 s. 15.



68

restraining order is no longer required or appropriate.

(10) An order under subsection (9) may be made on the application of the applicant for the restraining order.

28 Registration of restraining order

(1) If—

(a) a restraining order applies to property of a particular kind; and

(b) any law of Victoria provides for the registration of title to, or encumbrances on, or documents relating to the title to property of that kind—

the relevant registration authority under that law must, on application to it by the applicant for the restraining order, record on the register the prescribed particulars of the restraining order.

(2) Without limiting subsection (1), if a restraining order or an interstate restraining order registered under Part 15 of this Act relates to land under the operation of the Transfer of Land Act 1958, a caveat may be lodged under section 89 of that Act by any person mentioned in that section in relation to that order.

(3) For the purposes of subsection (2) and without limiting that subsection—


(b) if the restraining order directed a trustee to take control of the property, the trustee; or

(c) if an interstate restraining order directed a person to take control of the property, the person or, if that person entered into an agreement with a trustee to act as the agent of the person, the trustee—

S. 27(10) inserted by No. 68/2010 s. 15.



69

is deemed to be a person mentioned in section 89 of the Transfer of Land Act 1958.

Note


29 Contravention of restraining order

(1) A person who knowingly contravenes a restraining order by disposing of, or otherwise dealing with, an interest in property to which the order applies is guilty of an indictable offence and liable to—

(a) level 5 imprisonment (10 years maximum); or

(b) a level 5 fine (1200 penalty units maximum) or a fine not exceeding the value of the interest (as determined by the court), whichever is greater—

or to both.

(2) If the prescribed particulars referred to in section 28(1) are recorded as required by that section, a person who disposes of, or otherwise deals with, an interest in the property after the recording of those particulars is, for the purposes of subsection (1), to be taken to know of the restraining order.

30 Priority given to payment of restitution or compensation

If a restraining order is made for a purpose referred to in section 15(1)(e) and one or more other purposes and an order for restitution or compensation is made under the Sentencing


S. 29(2) amended by No. 42/2007 s. 18(Sch. item 9).



70

Act 1991 in relation to the offence in reliance on which the restraining order is made or damages are awarded in relation to that offence, the State must ensure that the order for restitution, compensation or damages is satisfied, to the value of the restrained property, before any other purpose for which the restraining order is made.

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

(1) If—

* * * * *

(b) property is forfeited by or under this Act, or a pecuniary penalty order is made, in relation to the offence in reliance on which the restraining order is made; and

(c) an order for restitution or compensation is made under the Sentencing Act 1991 in relation to that offence or damages are awarded in relation to that offence—

the State must satisfy, subject to subsection (2), to the value of the property forfeited or the amount of the penalty paid (less conversion costs), the order for restitution, compensation or damages.

(2) If, in relation to an offence, the value of the property forfeited and the amount of the penalty paid (less conversion costs) are less than the sum of orders for restitution, compensation or damages, the State must pay to each person awarded restitution, compensation or damages an amount calculated in accordance with the formula—

F V/A

S. 31 amended by No. 43/1998 s. 15(1)(b)(2) (ILA s. 39B(1)).S. 31(1)(a) repealed by No. 43/1998 s. 15(1)(a).

S. 31(2) inserted by No. 43/1998 s. 15(2).



71

where—

F is the value of the property forfeited and the amount of the penalty paid (less conversion costs);

V is a victim's award of restitution, compensation or damages to the extent that it has not been satisfied;

A is the total of awards of restitution, compensation and damages in respect of the offence.

Note





72

Part 2A—Freezing orders

31A Definition

In this Part—

authorised police officer means—

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

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

31B Chief Commissioner of Police may authorise police to apply for freezing orders

For the purposes of applying for a freezing order under this Part, the Chief Commissioner of Police may authorise in writing the following—


(b) a class of police officer.

Pt 2A (Heading and ss 31A–31M) inserted by No. 63/2003 s. 10.


S. 31A def. of authorised member of the police force substituted as authorised police officer by No. 37/2014 s. 10(Sch. item 25.4).


S. 31B(a) amended by No. 37/2014 s. 10(Sch. item 25.5).

S. 31B(b) amended by No. 37/2014 s. 10(Sch. item 25.5).



73

31C Freezing order

(1) A freezing order is an order that a financial institution must not allow a person to make withdrawals from a specified account—

(a) that is held in the person's name or in the name of the person and another person; or

(b) in which the person has an interest—

except in the manner and circumstances (if any) specified in the order.

(2) For the purposes of a freezing order, it is irrelevant whether or not money is deposited into the account in relation to which the freezing order was made after the order takes effect.

(3) A freezing order does not prevent a financial institution from making withdrawals from an account for the purpose of meeting a liability imposed on the financial institution in connection with that account by any law of the State or the Commonwealth.

31D Application for freezing order

(1) An authorised police officer may apply to the Magistrates' Court for a freezing order if the applicant believes on reasonable grounds that—

(a) the person in whose name the account is held in respect of which the freezing order is sought or a person who has an interest in that account—

(i) has committed, or is about to commit, a Schedule 1 offence, a Schedule 2 offence or a serious drug offence; or



S. 31D(1) amended by No. 37/2014 s. 10(Sch. item 25.5).

S. 31D(1)(a)(i) amended by Nos 87/2004 s. 22(1)(c), 55/2014 s. 28(a).



74

(ii) was involved in the commission, or is about to be involved in the commission, of such an offence; or

(iii) has benefited directly or indirectly, or is about to benefit directly or indirectly, from the commission of a Schedule 1 offence or a Schedule 2 offence; and

(b) an application for a restraining order is likely to be made in respect of property in which the person—

(i) in whose name the account is held has an interest; or

(ii) who has an interest in the account in respect of which a freezing order is sought, has an interest.

(1A) An authorised police officer may apply to the Magistrates' Court for a freezing order if the applicant suspects on reasonable grounds that—

(a) the relevant account contains money which is tainted property in relation to a Schedule 2 offence; and

(b) an application for a civil forfeiture restraining order is likely to be made in respect of property which is money in the account.

(1B) An authorised police officer may apply to the Magistrates' Court for a freezing order in respect of an account if the applicant suspects on reasonable grounds that—

(a) the person in whose name the account is held or a person who has an interest in the account has engaged in serious criminal activity; and

S. 31D(1)(a)(iii) amended by No. 55/2014 s. 28(b).

S. 31D(1A) inserted by No. 68/2010 s. 46(1), amended by No. 37/2014 s. 10(Sch. item 25.5).

S. 31D(1B) inserted by No. 79/2014 s. 12(1).



75

(b) an application for an unexplained wealth restraining order is likely to be made in respect of money held in that account.

(2) Subject to this section and section 31E, an application under subsection (1), (1A) or (1B) must be supported by an affidavit setting out—

(a) the grounds on which the freezing order is sought; and

(b) the name or names in which the relevant account is held; and

(c) the financial institution with which the account is held; and

(d) the account number or, if this is not known to the applicant, a description of the account that is sufficient to identify the account.

(3) If the applicant for a freezing order believes that it is impracticable for an affidavit to be prepared and sworn before the application is made, an application may be made before an affidavit is prepared or sworn.

(4) If subsection (3) applies, the applicant for a freezing order must—

(a) provide as much information as the Magistrates' Court considers is reasonably practicable in the circumstances; and

(b) not later than the day following the making of the application, send a duly sworn affidavit to the venue of the Magistrates' Court that determined the application, whether or not a freezing order has been made.

S. 31D(2) amended by Nos 68/2010 s. 46(2), 79/2014 s. 12(2).



76

(5) In addition to the powers of the Magistrates' Court under section 126 of the Magistrates' Court Act 1989, the Court may order that the whole or any part of the proceedings for an application for a freezing order be heard in closed court if the Court is of the opinion that it is necessary to do so in order not to prejudice an investigation by a police officer.

31E Application may be made by telephone etc.

(1) An authorised police officer may apply under section 31D for a freezing order by telephone, facsimile or other form of communication.

(2) If transmission by facsimile machine is available and an affidavit has been prepared, the applicant must transmit a copy of the affidavit, whether sworn or unsworn, to the venue of the Magistrates' Court that is to determine the application for a freezing order.

(3) If an application is made under section 31D in accordance with this section, the applicant, not later than the day following the making of the application, must send the original affidavit duly sworn to the venue of the Magistrates' Court that determined the application, whether or not a freezing order has been made.

31F Making of freezing order

(1) On an application under section 31D(1), the Magistrates' Court may make a freezing order if it is satisfied—


S. 31E inserted by No. 63/2003 s. 10.

S. 31E(1) amended by No. 27/2016 s. 10.

S. 31F inserted by No. 63/2003 s. 10.

S. 31F(1) amended by No. 68/2010 s. 47(1).



77

(a) that there are reasonable grounds for believing the matters referred to in paragraphs (a) and (b) of section 31D(1); and

(b) if the application has been made without an affidavit, that—

(i) there are sufficiently urgent circumstances to justify the making of an application without an affidavit; and

(ii) it would have been impracticable for an affidavit to have been prepared and sworn before the application was made; and

* * * * *

(d) that it is appropriate to make the freezing order.

(1A) On an application under section 31D(1A), the Magistrates' Court may make a freezing order if it is satisfied—

(a) that there are reasonable grounds for suspecting the matters referred to in section 31D(1A)(a) and (b); and




* * * * *

S. 31F(1)(c) repealed by No. 27/2016 s. 11.

S. 31F(1A) inserted by No. 68/2010 s. 47(2).

S. 31F(1A)(c) repealed by No. 27/2016 s. 11.



78


(1B) On an application under section 31D(1B), the Magistrates' Court may make a freezing order if it is satisfied—

(a) that there are reasonable grounds for suspecting the matters referred to in section 31D(1B)(a) and (b); and




* * * * *


(2) In determining whether a freezing order should be made, the Magistrates' Court must have regard to—

(a) the amount of money in the account to be frozen; and

(b) whether the account is held in the name of more than one person; and

S. 31F(1B) inserted by No. 79/2014 s. 13.

S. 31F(1B)(c) repealed by No. 27/2016 s. 11.



79

(c) any hardship that may reasonably be likely to be caused to any person by the order.

(3) A freezing order must specify—

(a) the name of the magistrate constituting the court which made the order; and

(b) the date and time at which the order was made; and

(c) the name of the financial institution with which the account is held; and

(d) the number of the account to be frozen or a description of the account that is sufficient to identify the account; and

(e) any conditions to which the order is subject.

(4) A freezing order must be in the prescribed form.

(5) Subject to subsection (6), if the Magistrates' Court makes a freezing order on an application made in accordance with section 31E, the Court must—

(a) inform the applicant of the terms of the freezing order and the date on which and the time at which it was made; and

(b) if transmission by facsimile machine is available, transmit a copy of the freezing order to the applicant.

(6) If a copy of the freezing order has not been transmitted by facsimile machine, the Magistrates' Court must make a copy of the freezing order available to the applicant as soon as practicable.

31G Notice of freezing order

S. 31G inserted by No. 63/2003 s. 10.



80

(1) If the Magistrates' Court makes a freezing order and a copy of the order is provided to the applicant in writing or by facsimile at the time the order is made, a police officer must give to the relevant financial institution—

(a) a copy of the freezing order; and

(b) a notice in the prescribed form which specifies—

(i) that the freezing order takes effect at the time that notice of the freezing order is given to the financial institution and lasts for 3 business days unless the financial institution is otherwise advised by a police officer that the order—

(A) has ceased to have effect; or

(B) has been extended by court order under section 31I; and

(ii) the effect of sections 31K and 31L.

(2) If the Magistrates' Court makes a freezing order and a copy of the order is not provided to the applicant in writing or by facsimile at the time the order is made, a police officer must give to the relevant financial institution a notice in the prescribed form which specifies—

(a) the name of the magistrate constituting the court which made the order; and

(b) the date and time at which the order was made; and

(c) the name of the financial institution; and

S. 31G(1) amended by No. 37/2014 s. 10(Sch. item 25.5).

S. 31G(1)(b)(i) amended by Nos 68/2010 s. 16(2), 37/2014 s. 10(Sch. item 25.5).

S. 31G(2) amended by No. 37/2014 s. 10(Sch. item 25.5).



81

(d) the number of the account to be frozen or a description of the account that is sufficient to identify the account; and

(e) any conditions to which the order is subject; and

(f) that the freezing order takes effect at the time that notice of the freezing order is given to the financial institution and lasts for 3 business days unless the financial institution is otherwise advised by a police officer that the order—

(i) has ceased to have effect; or

(ii) has been extended by court order under section 31I; and

(g) the effect of sections 31K and 31L.

(3) A notice under this section must not be given to the relevant financial institution more than 3 business days after a freezing order has been made.

(4) A notice under this section must be given in accordance with section 137 and, without limiting the generality of that section, may be given by facsimile.

(5) For the purposes of this section, the regulations may prescribe a composite form which incorporates the prescribed notice required by subsection (1) and the prescribed notice required by subsection (2).

31H When does a freezing order take effect?

(1) A freezing order takes effect on the date and at the time that notice of the freezing order is given to the financial institution in accordance with section 31G.

S. 31G(2)(f) amended by Nos 68/2010 s. 16(2), 37/2014 s. 10(Sch. item 25.5).

S. 31G(3) amended by No. 68/2010 s. 16(2).

S. 31H inserted by No. 63/2003 s. 10.



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(2) Subject to section 31I, a freezing order ceases to be in force on—

(a) the making of a restraining order or a civil forfeiture restraining order in respect of the money in the account; or

(b) the expiration of 3 business days after the day on which the freezing order took effect—

whichever occurs first.

31I Extension of freezing orders

(1) A person who applied for a freezing order may apply to the Magistrates' Court for an extension of the duration of that freezing order.

(2) On an application under subsection (1), the Magistrates' Court—

(a) must have regard to the matters set out in section 31F(2); and

(b) must not extend the duration of a freezing order unless the Court is satisfied that—

(i) an application for a restraining order or a civil forfeiture restraining order in respect of the money in the account has been made; and

(ii) the application for the restraining order or the civil forfeiture restraining order has not been determined.

(3) If the Magistrates' Court extends the duration of a freezing order, the applicant for the extension must give a written notice to the relevant financial institution stating that—

(a) the duration of the freezing order has been extended; and

S. 31H(2)(a) amended by No. 68/2010 s. 48(1).

S. 31H(2)(b) amended by No. 68/2010 s. 16(1).

S. 31I inserted by No. 63/2003 s. 10.

S. 31I(2)(b)(i) amended by No. 68/2010 s. 48(2)(a).

S. 31I(2)(b)(ii) amended by No. 68/2010 s. 48(2)(b).



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(b) the extended freezing order ceases to be in force—

(i) when a restraining order or a civil forfeiture restraining order is made in respect of the money in the account to which the freezing order applies; or

(ii) if a restraining order or a civil forfeiture restraining order is not made in respect of the money in the account to which the freezing order applies, when the financial institution is given notice under subsection (5) that the extended freezing order has ceased to be in force.

(4) A written notice under subsection (3) must be given within 6 hours after the Magistrates' Court extends the freezing order.

(5) If the Magistrates' Court extends the duration of a freezing order and, on the determination of an application for a restraining order or a civil forfeiture restraining order, a restraining order or a civil forfeiture restraining order, as the case requires, is not made in respect of the money in the account to which the freezing order applies, the applicant for the extension of the freezing order must give a written notice to the relevant financial institution stating that the extended freezing order has ceased to be in force.

(6) A written notice under subsection (5) must be given as soon as practicable, but not more than 6 hours after the application for the restraining order or the civil forfeiture restraining order, as the case requires, is determined.

S. 31I(3)(b)(i) amended by No. 68/2010 s. 48(2)(c).

S. 31I(3)(b)(ii) amended by No. 68/2010 s. 48(2)(c).

S. 31I(5) amended by No. 68/2010 s. 48(2)(d).

S. 31I(6) amended by No. 68/2010 s. 48(2)(e).



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(7) A freezing order that has been extended under subsection (2) ceases to be in force—

(a) when a restraining order or a civil forfeiture restraining order is made in respect of the money in the account to which the freezing order applies; or

(b) if a restraining order or a civil forfeiture restraining order is not made in respect of the money in the account to which the freezing order applies, when the financial institution is given notice under subsection (5) that the extended freezing order has ceased to be in force.

31J Report to Magistrates' Court on freezing order

(1) If a freezing order is made, the person who applied for the freezing order must give a report in writing to the registrar of the Magistrates' Court—

(a) stating whether or not notice of the freezing order was given to the financial institution in accordance with section 31G; and

(b) setting out the date on and time at which the freezing order—

(i) took effect; and

(ii) ceased to be in force; and

(c) stating whether or not the freezing order was extended.

(2) A report under this section must be made—

(a) within 7 days after the freezing order ceases to be in force; or

(b) if notice of the freezing order was not given to the financial institution, within 7 days after the freezing order was made.

31K Failure to comply with freezing order

S. 31I(7)(a) amended by No. 68/2010 s. 48(2)(f).

S. 31I(7)(b) amended by No. 68/2010 s. 48(2)(f).

S. 31J inserted by No. 63/2003 s. 10.

S. 31K inserted by No. 63/2003 s. 10.



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(1) A financial institution that has been given notice of a freezing order must not, without reasonable excuse, fail to comply with the order.


(2) An offence against this section is a summary offence.

31L Offence to disclose existence of freezing order

(1) While a freezing order is in force, a financial institution that has been given notice of a freezing order must not disclose the existence or operation of the freezing order to any person except—


(b) an officer or agent of the financial institution, for the purpose of ensuring that the freezing order is complied with; or

(c) a legal practitioner acting for the financial institution, for the purpose of obtaining legal advice or representation in relation to the freezing order; or

(d) a person in whose name the account is held or who has an interest in the account in respect of which the freezing order is made.

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

(2) While a freezing order is in force, a person to whom the existence or operation of the freezing order is disclosed in accordance with subsection (1) must not—

(a) while he or she is a person of a kind referred to in paragraph (a), (b) or (c) of

S. 31L inserted by No. 63/2003 s. 10.

S. 31L(1)(a) substituted by No. 37/2014 s. 10(Sch. item 25.6(a)).



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subsection (1) disclose the existence or operation of the freezing order to any person except another person of that kind for the purpose of—

(i) if the disclosure is made by a police officer, the performance of the police officer's duties; or

(ii) if the disclosure is made by an officer or agent of the financial institution, ensuring that the freezing order is complied with or obtaining legal advice or representation in relation to the freezing order; or

(iii) if the disclosure is made by a legal practitioner, giving legal advice or providing representation in relation to the freezing order; or

(b) when he or she is no longer a person of a kind referred to in paragraph (a), (b) or (c) of subsection (1), make a record of, or disclose, the existence or operation of the freezing order in any circumstances.

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

(3) Nothing in subsection (2) prevents the disclosure by a person of a kind referred to in paragraph (a), (b) or (c) of subsection (1) of the existence or operation of a freezing order—

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

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

(4) Nothing in subsection (2) prevents the disclosure by a person of a kind referred to in paragraph (a)

S. 31L(2)(a)(i) amended by No. 37/2014 s. 10(Sch. item 25.6(b)).



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of subsection (1) of the existence or operation of a freezing order for the purposes of a report under section 139A(1).

(5) While a freezing order is in force, a police officer must not be required to disclose to any court the existence or operation of the freezing order.

(6) A reference in this section to disclosing the existence or operation of a freezing order to a person includes a reference to disclosing information to the person from which the person could reasonably be expected to infer the existence or operation of the freezing order.

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

31M Freezing order to be disregarded for certain purposes

If a financial institution is given, or has been given, notice of a freezing order, the fact that the freezing order has been made must be disregarded for the purposes of the application of section 194 or 195A of the Crimes Act 1958 in relation to the institution.

S. 31L(5) amended by No. 37/2014 s. 10(Sch. item 25.6(c)).

S. 31M (Heading) inserted by No. 104/2003 s. 5(5)(a).S. 31M inserted by No. 63/2003 s. 10, amended by No. 104/2003 s. 5(5)(b).



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Part 3—Forfeiture of property

Division 1—Forfeiture on court order32 Application for forfeiture order

(1) If an accused is convicted of a Schedule 1 offence, the DPP or an appropriate officer may apply to the Supreme Court or the court before which the accused was convicted of the offence for a forfeiture order in respect of tainted property.

(2) Except with the leave of the court, an application may only be made under subsection (1) before the end of the relevant period (if any) in relation to the conviction.

(3) A court must not grant leave under subsection (2) unless it is satisfied that—

(a) the property to which the application relates was derived, realised or identified only after the end of the relevant period; or

(b) necessary evidence became available only after the end of the relevant period; or

(c) it is otherwise in the interests of justice to do so.

(4) The applicant must give written notice of the application—

(a) to the accused, unless the accused has absconded; and


S. 32(1) amended by Nos 87/2004 s. 22(1)(d), 68/2009 s. 97(Sch. item 23.23).

S. 32(4)(a) amended by Nos 63/2003 s. 11, 68/2009 s. 97(Sch. item 23.23(b)).



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(5) The court may waive the requirement under subsection (4) to give notice if—

(a) the accused is present before the court; and

(b) the court is satisfied either that any other person who has an interest in the property is present before the court or that it is fair to waive the requirement despite any such person not being present.

(6) The court may, at any time before the final determination of the application, require the applicant to give notice of the application to any person, in any manner and within any time that the court thinks fit.

(7) Any person notified under subsection (4) or (6) and any other person who claims an interest in the property are entitled to appear and to give evidence at the hearing of the application but the absence of a person does not prevent the court from making a forfeiture order.

(8) The court may, at any time before the final determination of the application and whether or not the period for making the application has expired, amend the application as it thinks fit, either at the request of the applicant or with the approval of the applicant.

(9) If an application under subsection (1) has been finally determined, no further application may be made under that subsection in relation to the same conviction, except with the leave of the Supreme Court or the court which dealt with the earlier application.

S. 32(5)(a) amended by No. 68/2009 s. 97(Sch. item 23.23(b)).



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(a) the property to which the new application relates was derived, realised or identified only after the earlier application was determined; or

(b) necessary evidence became available only after the earlier application was determined; or


33 Determination of application for forfeiture order

(1) On an application under section 32(1), if the court is satisfied that the property is tainted property in relation to the offence, the court may order that the property, or such of the property as is specified by the court in the order, be forfeited to the Minister.

(2) A forfeiture order must specify the interests in property to which it applies.

(3) If an application is made under section 32(1) to the court before which the person was convicted of the offence before that court has passed sentence for the offence, that court may make a forfeiture order at the time of passing sentence and for this purpose the court may, if it thinks it necessary to do so, defer the passing of sentence until it has determined the application for the order.

(4) On an application under section 32(1) a court may, subject to Part 3.10 of the Evidence Act 2008 and any rules of court, take into account in determining the application any material that it thinks fit, including evidence given in any proceeding relating to the offence in reliance on

S. 33(1) amended by No. 43/1998 s. 36(b).

S. 33(4) amended by No. 69/2009 s. 54(Sch. Pt 1 item 9.1).



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the conviction of which the application is made and, for this purpose, the whole or any part of the transcript of those proceedings is admissible in evidence as if it were a record of evidence given on the hearing of the application.

(5) In considering whether to make an order under subsection (1) in respect of particular property, the court may have regard to—

(a) the use that is ordinarily made, or had been intended to be made, of the property; and

(b) subject to subsection (5A), any undue hardship that may reasonably be likely to be caused to any person by the order; and

(c) the claim of any person to an interest in the property having regard to the matters specified in section 50(1).

(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.

(6) A court must give priority to an application made under section 84 (restitution order) or Division 2 of Part 4 (compensation order) of the Sentencing Act 1991 in relation to the same conviction and, accordingly, may defer the determination of an application under section 32(1) until the application under the Sentencing Act 1991 has been determined.

(7) The making of a forfeiture order does not prevent the making of a pecuniary penalty order.

34 Consent orders

(1) Subject to section 12, a court may make a forfeiture order by consent of the applicant and

S. 33(5)(b) substituted by No. 55/2014 s. 14(1).


S. 33(6) amended by No. 54/2000 s. 25(2).



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the respondent and of any person whom it has reason to believe has an interest in property in respect of which the order is made.

(2) A law enforcement agency or an applicant for a forfeiture order must not enter into an agreement to settle any matter in respect of which a forfeiture order could be made under this Division and which involves the payment of money or the transfer of property to the Minister except—

(a) by way of a consent order under subsection (1); or

(b) as restitution of stolen property; or

(c) as compensation for loss or destruction of, or damage to, property; or

(d) with the approval of the Supreme Court or the court before which the person was convicted of the Schedule 1 offence.

Division 1A—Tainted property substitution declaration—forfeiture order

34A Interpretation

(1) For the purposes of this Division, property is not available for forfeiture if the accused does not have an interest in the property.

S. 34(2) amended by No. 43/1998 s. 36(c).

S. 34(2)(d) amended by No. 87/2004 s. 22(1)(e).

Pt 3 Div. 1A (Heading and ss. 34A–34C) inserted by No. 63/2003 s. 12.Pt 3 Div. 1A (Heading) amended by No. 68/2010 s. 17.





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(2) In this Division—

applicant means a person who may apply for—

(a) a forfeiture order; or

(b) a restraining order for the purposes of forfeiture.

34B Application for tainted property substitution declaration

(1) If an accused is convicted of a Schedule 1 offence, an applicant may apply for a tainted property substitution declaration to—

(a) the Supreme Court; or

(b) the County Court; or

(c) the court before which the accused was convicted of the offence.

(2) The application under subsection (1) must—

(a) be made in conjunction with an application for a forfeiture order; and

(b) specify property that the accused used or intended to use in or in connection with the commission of the Schedule 1 offence of which the accused is convicted; and

(c) specify property which is to be substituted for the property referred to in paragraph (b) that—

(i) is property in which the accused had an interest at the time that the Schedule 1 offence was committed; and


S. 34B(1) amended by Nos 87/2004 s. 22(1)(f), 68/2009 s. 97(Sch. item 23.25(a)).

S. 34B(1)(c) amended by No. 68/2009 s. 97(Sch. item 23.25(b)).

S. 34B(2)(b) amended by Nos 87/2004 s. 22(1)(f), 68/2009 s. 97(Sch. item 23.25(b)).

S. 34B(2)(c)(i) amended by Nos 87/2004 s. 22(1)(f), 68/2009 s. 97(Sch. item 23.25(b)).



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(ii) is of the same nature or description as the property referred to in paragraph (b).

Example

An accused is convicted of a sexual offence against a child and, in the commission of that offence, the accused used a rented flat although the accused owned a flat at the time. The prosecution may apply to the court for a declaration that the flat owned by the accused is tainted property although the rented flat and the flat owned by the accused are not of equal value. (see section 34C(2)).

34C Court may make tainted property substitution declaration

(1) Subject to subsection (2), a court may make a tainted property substitution declaration if the court is satisfied as to the following matters—

(a) that the accused used or intended to use the property which is not available for forfeiture in or in connection with the commission of the Schedule 1 offence of which the accused is convicted; and

(b) that the property referred to in paragraph (a) is not available for forfeiture; and

(c) that the property which is to be substituted for the property referred to in paragraph (a)—


Example to s. 34B(2)(c) amended by No. 68/2009 s. 97(Sch. item 23.26).


S. 34C(1)(a) amended by Nos 87/2004 s. 22(1)(g), 68/2009 s. 97(Sch. item 23.27).

S. 34C(1)(c)(i) amended by Nos 87/2004 s. 22(1)(g), 68/2009 s. 97(Sch. item 23.27).



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(ii) is of the same nature or description as the property referred to in paragraph (a).

(2) The court may make a tainted property substitution declaration whether or not the value of the property which is not available for forfeiture is equal to the value of the property which is to be substituted for that property.

(3) A court must not make a tainted property substitution declaration in respect of any property if, at the time of the commission of the Schedule 1 offence, the accused did not have an interest in the property.

(4) If the court makes a tainted property substitution declaration in respect of property, that property—

(a) is substituted for the property which is not available for forfeiture; and

(b) is deemed to be tainted property for the purposes of this Act.

Division 2—Automatic forfeiture after conviction35 Automatic forfeiture of restrained property on

conviction of certain offences

(1) If—

(a) a person is convicted of a Schedule 2 offence; and

(b) a restraining order is or was made under Part 2 in respect of property for the purposes of automatic forfeiture in reliance on—

S. 34C(3) amended by Nos 87/2004 s. 22(1)(g), 68/2009 s. 97(Sch. item 23.27).

S. 35(1) amended by Nos 43/1998 s. 36(d), 42/2007 s. 9.

S. 35(1)(a) amended by No. 87/2004 s. 22(1)(h).



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(i) the conviction of the accused of that offence; or

(ii) the charging or proposed charging of the accused with that offence or a related offence that is a Schedule 2 offence; and

(c) the restrained property is not the subject of an exclusion order under section 22; and

(ca) the restrained property is not the subject of an application under section 20 that is still pending—

the restrained property, subject to any declaration under section 23, is forfeited to the Minister on the expiry of 60 days after—

(d) the making of the restraining order; or

(e) the conviction of the accused—

whichever is later.

(2) If an application under section 20 in respect of restrained property is still pending on the expiry of the period of 60 days referred to in subsection (1), the property is forfeited to the Minister—

(a) if the application is refused or dismissed, at the end of the period during which the person may appeal against the refusal or dismissal or, if such an appeal is lodged, when the appeal is abandoned or finally

S. 35(1)(b)(i) amended by No. 68/2009 s. 97(Sch. item 23.28(a)).S. 35(1)(b)(ii) amended by Nos 87/2004 s. 22(1)(h), 68/2009 s. 97(Sch. item 23.28(b)).

S. 35(1)(c) amended by No. 68/2010 s. 18(1)(a).

S. 35(1)(ca) inserted by No. 68/2010 s. 18(1)(b).

S. 35(1)(e) amended by No. 68/2009 s. 97(Sch. item 23.28(a)).

S. 35(2) amended by Nos 43/1998 s. 36(d), 68/2010 s. 18(2), 77/2013 s. 5(1).



97

determined without the order having been made; or

(b) if the application is withdrawn or struck out, on that withdrawal or striking out.

(2A) For the purposes of subsections (1) and (2), 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 (1).

(3) If a person is, by reason of section 4(1)(d), deemed to have been convicted of a Schedule 2 offence, the DPP may apply to the Supreme Court or the County Court for an order declaring the date of conviction for the purposes of this section.

(4) On an application under subsection (3), the court must not make an order declaring the date of conviction of a person of a Schedule 2 offence unless it is satisfied that the person has absconded.

35A Schedule 2 offences—application for court declaration

(1) Subject to subsection (2), the DPP may apply to the court which convicted an accused of an offence for a declaration that the offence was a Schedule 2 offence.


S. 35(3) amended by No. 87/2004 s. 22(1)(h).

S. 35(4) amended by No. 87/2004 s. 22(1)(h).

S. 35A (Heading) amended by No. 87/2004 s. 22(1)(i)(i)S. 35A inserted by No. 63/2003 s. 13.

S. 35A(1) amended by Nos 87/2004 s. 22(1)(i)(ii), 68/2009 s. 97(Sch. item 23.29).



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(1A) Subject to subsection (2), if an accused is convicted of an offence by the Magistrates' Court or the Children's Court, an appropriate officer may apply to that court for a declaration that the offence was a Schedule 2 offence.

(2) An application under subsection (1) or (1A) must not be made if the court which convicted the accused of the offence has already made a finding that the offence was committed in the circumstances specified in Schedule 2 in relation to that offence.

35B Applicant to notify accused

(1) The applicant must give written notice of the application under section 35A to the accused.

(2) The court hearing the application under section 35A may waive the requirement to give notice if the accused is present before the court.

(3) The accused is entitled to appear and to give evidence at the hearing of the application under section 35A but the absence of the accused does not prevent the court from making a declaration.

35C Court may make declaration

S. 35A(1A) inserted by No. 27/2016 s. 12(1).

S. 35A(2) amended by Nos 68/2009 s. 97(Sch. item 23.30), 27/2016 s. 12(2).

S. 35B (Heading) amended by No. 68/2009 s. 97(Sch. item 23.31).S. 35B inserted by No. 63/2003 s. 13.

S. 35B(1) amended by No. 68/2009 s. 97(Sch. item 23.32).



S. 35C inserted by No. 63/2003 s. 13, amended by No. 87/2004 s. 22(1)(j).



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On an application under section 35A, the court may make a declaration if satisfied that the offence is a Schedule 2 offence.

36 Declaration that property has been forfeited

(1) If a court makes a restraining order in reliance on—

(a) the conviction of an accused of a Schedule 2 offence; or

(b) the charging or proposed charging of an accused with a Schedule 2 offence—

a person may apply to the court that made that order for a declaration that property that was subject to the restraining order has been forfeited to the Minister under section 35 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


S. 36 amended by Nos 43/1998 s. 36(e), 63/2003 s. 14 (ILA s. 39B(1)).

S. 36(1)(a) amended by Nos 87/2004 s. 22(1)(k), 68/2009 s. 97(Sch. item 23.33(a)).

S. 36(1)(b) amended by Nos 87/2004 s. 22(1)(k), 68/2009 s. 97(Sch. item 23.33(b)).

S. 36(2) inserted by No. 63/2003 s. 14.




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Division 3—Tainted property substitution declaration—automatic forfeiture

36A Interpretation

(1) For the purposes of this Division, property is not available for forfeiture if the accused does not have an interest in the property.

(2) In this Division—

applicant means a person who under section 16(2) may apply for a restraining order in relation to a Schedule 2 offence.

36B Application for tainted property substitution declaration

(1) If property is restrained for the purposes of automatic forfeiture and an application under section 20 is made for an exclusion order under section 22, an applicant may apply for a tainted property substitution declaration to—

(a) the Supreme Court; or

(b) the County Court.

(1A) Subsection (1) applies only if an application under section 20(1) has been made—

Pt 3 Div. 3 (Heading and ss 36A–36G) inserted by No. 68/2010 s. 19.



S. 36B(1A) inserted by No. 77/2013 s. 6.



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(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 section 35(1).

(2) An application under subsection (1) must be made within 30 days after service on the applicant of notice of the application under section 20.

(3) The court may extend the period within which an application under subsection (1) may be made, whether or not that period has expired, if it is in the interests of justice to do so.

(4) An application under subsection (1) must—

(a) specify property that the accused used or intended to use in or in connection with the commission or alleged commission of the Schedule 2 offence in relation to which the restraining order was made; and

(b) specify property which is to be substituted for the property referred to in paragraph (a) that—

(i) is property in which the accused had an interest at the time that the Schedule 2 offence was committed, or is alleged to have been committed; and


36C Notice of application

(1) The applicant must give written notice of an application under section 36B to—




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(a) the accused, unless the accused has absconded; and

(b) the applicant under section 20 for an exclusion order under section 22; and

(c) any other person who the applicant has reason to believe has an interest in the restrained property.

(2) The court may, at any time before the final determination of the application, require the applicant to give notice of the application to any person, in any manner and within any time that the court thinks fit.

36D Right to appear and give evidence

Any person who is given notice under section 36C is entitled to appear and to give evidence at the hearing of the application under section 36B but the absence of a person does not prevent the court from making a tainted property substitution order.

36E Hearing of application

(1) An application under section 36B must not be heard until all charges for Schedule 2 offences against the accused have been finally determined.

(2) In subsection (1)—

Schedule 2 offence means the Schedule 2 offence in relation to which the restraining order was made or a related offence that is a Schedule 2 offence.

36F Determination of application

(1) Subject to subsection (2), a court may make a tainted property substitution declaration if the court is satisfied that—






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(a) the accused used or intended to use the property which is not available for forfeiture in or in connection with the commission of the Schedule 2 offence of which the accused is convicted; and

(b) the property referred to in paragraph (a) is not available for forfeiture; and

(c) the property which is to be substituted for the property referred to in paragraph (a)—



(2) The court may make a tainted property substitution declaration whether or not the value of the property which is not available for forfeiture is equal to the value of the property which is to be substituted for that property.

(3) A court must not make a tainted property substitution declaration under this Division in respect of any property if, at the time of the commission of the Schedule 2 offence, the accused did not have an interest in the property.

(4) If the court makes a tainted property substitution declaration under this Division in respect of property, that property—

(a) is substituted for the property which is not available for forfeiture; and

(b) is deemed to be tainted property for the purposes of this Act.



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36G Deemed withdrawal of application

An application under section 36B is deemed to have been withdrawn on the acquittal of the accused of all Schedule 2 offences specified in the application.

Division 4—Automatic forfeiture of property of serious drug offender

36GA Automatic 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.


Pt 3 Div. 4 (Heading and ss 36GA, 36GB) inserted by No. 55/2014 s. 29.

S. 36GA inserted by No. 55/2014 s. 29.



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(2) Unless an application for an exclusion order under section 22A 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 making of the declaration under section 89DI of the Sentencing Act 1991.

(3) If, on the expiry of the 60 days referred to in subsection (2), an application for an exclusion order under section 22A 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 for an exclusion order under section 22A is not pending unless an application under section 20(1) has been made—


(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

S. 36GA(2) amended by No. 27/2016 s. 13(1)(a).

S. 36GA(2)(b) substituted by No. 27/2016 s. 13(1)(b).

S. 36GA(3) amended by No. 27/2016 s. 13(2).

S. 36GA(4) amended by No. 27/2016 s. 13(3).



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period of 60 days referred to in subsection (2).

36GB Declaration 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


S. 36GB inserted by No. 55/2014 s. 29.



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Part 4—Civil forfeiture regime

Division 1—Civil forfeiture restraining orders

36H Civil forfeiture restraining orders

(1) A civil forfeiture restraining order is an order that no property or interest in property, that is property or an interest to which the order applies, is to be disposed of, or otherwise dealt with by any person except in the manner and circumstances (if any) specified in the order.

(2) If a provision of this Act confers a power to apply for a civil forfeiture restraining order in respect of property in which a person has an interest, the application may be made in respect of one or more of the following—




Pt 4 (Heading and ss 37–40) amended by Nos 43/1998 ss 16, 36(f)(g), 63/2003 s. 15, 87/2004 ss 15–17, 42/2007 s. 18(Sch. items 12–14), substituted as Pt 4 (Heading and ss 36H–40B) by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).

S. 36H inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).



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(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—



(4) A civil forfeiture restraining order may, at the time it is made or at a later time, provide for meeting—


(b) reasonable business expenses—

of any person to whose property the order applies if the Supreme Court or County Court, as the case requires, that makes or made the order is satisfied that these expenses cannot be met from unrestrained property or income of the person.

(5) The Supreme Court or the County Court, in making a civil forfeiture restraining order, must not provide for the payment of legal expenses in respect of any legal proceeding, whether criminal or civil.

S. 36H(3) substituted by No. 55/2014 s. 56.

S. 36H(3)(b) amended by No. 20/2015 s. 7.



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(6) Subject to subsections (4) and (5), a civil forfeiture restraining order may be made subject to any conditions that the court making the order thinks fit.

(7) The Supreme Court or the County Court, as the case requires, may refuse to make a civil forfeiture restraining order if the DPP or another person or body on behalf of the State refuses or fails to give to the court any undertakings that the court considers appropriate concerning the payment of damages or costs in relation to the making and operation of the order.

36I Purpose for which a civil forfeiture restraining order may be made

(1) A civil forfeiture restraining order may be made to preserve property or an interest in property in order that the property or interest will be available to satisfy any civil forfeiture order that may be made under Division 2.

(2) If the Supreme Court or the County Court makes a civil forfeiture restraining order in respect of property or an interest in property, the civil forfeiture restraining order must state that the property or interest is restrained to preserve property or an interest in property so that the property or interest will be available to satisfy a civil forfeiture order.

36J Property may be subject to both civil forfeiture restraining order and other orders

(1) In addition to being subject to a civil forfeiture restraining order, property or an interest in property may be subject to either or both of the following—

(a) a restraining order under Part 2;

(b) an unexplained wealth restraining order.

S. 36I inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).

S. 36J inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23), amended by No. 55/2014 ss 4, 30, substituted by No. 79/2014 s. 14.



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(2) If a civil forfeiture restraining order and a restraining order under Part 2 made for the purposes of section 15(1)(a), (b) or (c) or an unexplained wealth restraining order (or both) apply in relation to the same property or interest in property, the civil forfeiture restraining order, to the extent to which it applies to that property or interest in property, remains in operation until the earliest of the following—

(a) the property being able to be disposed of in accordance with section 44(2) because automatic forfeiture has occurred under section 35 in relation to a Schedule 2 offence;

(b) 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;

(c) the property being able to be disposed of in accordance with section 44(2) because a forfeiture order under Division 1 of Part 3 has been made in relation to the same property or interest in property to which the civil forfeiture restraining order applies;

(d) the property being able to be disposed of in accordance with section 44(2) because unexplained wealth forfeiture of the property or interest in property has occurred under section 40ZA;

(e) the civil forfeiture restraining order ceasing to operate or being set aside in whole or in relation to the property or interest in property under section 36X;



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(f) the property or interest in property being excluded from the operation of the civil forfeiture restraining order by a civil forfeiture exclusion order.

36K Application for civil forfeiture restraining order

(1) 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 civil forfeiture restraining order in respect of property if a police officer or a person authorised by or under an Act to prosecute the relevant type of offence suspects on reasonable grounds that the property is tainted property.

(2) An application under subsection (1) must be supported by an affidavit of a police officer or a person authorised by or under an Act to prosecute the relevant type of offence (as the case requires)—

(a) setting out any relevant matters; and

(b) stating that the police officer or the person suspects that the property is tainted property; and

(c) setting out the grounds on which the police officer or the person has that suspicion.

S. 36K inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).

S. 36K(1) amended by Nos 37/2014 s. 10(Sch. item 25.7(a)), 55/2014 s. 5(1).

S. 36K(2) amended by No. 37/2014 s. 10(Sch. item 25.7(b)(i)).

S. 36K(2)(b) amended by Nos 37/2014 s. 10(Sch. item 25.7(b)(ii), 55/2014 s. 5(1).

S. 36K(2)(c) amended by No. 37/2014 s. 10(Sch. item 25.7(b)(ii).



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(3) An application for a civil forfeiture restraining order does not need to specify a particular person alleged to have committed the Schedule 2 offence or any one or more of the Schedule 2 offences in relation to which the property which is the subject of the application is reasonably suspected of being tainted property.

(4) An application for a restraining order or an unexplained wealth restraining order in relation to property or an interest in property does not preclude an application for a civil forfeiture restraining order being made in relation to the same property or interest in property.

(5) An application for a civil forfeiture restraining order may be made more than once.

(6) Without limiting the operation of this section, an application for a civil forfeiture restraining order may be made—

(a) in relation to different property or a different interest in property in respect of the same Schedule 2 offence or offences; or

(b) in relation to the same property or interest in property in respect of a different Schedule 2 offence or different Schedule 2 offences.

36L Procedure on application for civil forfeiture restraining order

(1) On an application under section 36K, if the Supreme Court or the County Court, as the case requires, having regard to the matters referred to in subsection (2), is satisfied that the circumstances of the case justify the giving of notice to a person affected, the court may direct an applicant for a civil forfeiture restraining order to give notice of the application for that order to any person whom the court has reason to believe has

S. 36K(3) amended by No. 55/2014 s. 5(2).

S. 36K(4) amended by No. 79/2014 s. 15.

S. 36K(6)(a) amended by No. 55/2014 s. 5(3)(a).

S. 36K(6)(b) amended by No. 55/2014 s. 5(3)(b).

S. 36L inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).



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an interest in the property that is the subject of the application.

(2) In determining whether the circumstances of the case justify the giving of notice, the court must have regard to—

(a) the aim of preserving the property that is the subject of the application so as to ensure its availability for the purpose of civil forfeiture; and



(d) the provision made by this Act to enable a person claiming an interest in property the subject of a civil forfeiture restraining order to apply for a section 36V exclusion order to protect that interest from the operation of the civil forfeiture restraining order; and

(e) the limited duration of a civil forfeiture restraining order; and


(3) In determining whether to direct an applicant to give notice of an application for a civil forfeiture restraining order, the court may have regard to any other matter that the court considers relevant.

(4) If the court does not require notice of an application for a civil forfeiture restraining order to be given under subsection (1), it may hear and determine the application in the absence of any



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person who has an interest in the property that is the subject of the application.

(5) Any person notified under subsection (1) 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 a civil forfeiture restraining order.







Penalty: Imprisonment for 12 months or 1000 penalty units.

36M Determination of application for civil forfeiture restraining order

(1) On an application under section 36K for a civil forfeiture restraining order, the Supreme Court or the County Court, as the case requires, must make a civil forfeiture restraining order if it is satisfied that—

S. 36M inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23), amended by No. 55/2014 s. 6(2) (ILA s. 39B(1)).



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(a) the deponent of the affidavit supporting the application does suspect that the property is tainted property; and

(b) there are reasonable grounds for that suspicion.

(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.

36N Notice of civil forfeiture restraining order to be given to persons affected

(1) If—

(a) a civil forfeiture restraining order is made in respect of property of a person; and

(b) notice had not been given to that person of the application for the civil forfeiture restraining order—

the applicant must give written notice of the making of the civil forfeiture restraining order to that person.

(2) If a person to whom notice must be given under subsection (1) cannot be found after all reasonable steps have been taken to locate the person, the applicant must—

S. 36M(1)(a) amended by No. 55/2014 s. 6(1).

S. 36M(2) inserted by No. 55/2014 s. 6(2).

S. 36N inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).



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(a) cause to be published in a newspaper circulating generally in Victoria a notice containing details of the civil forfeiture restraining order; or

(b) give notice to that person in any other manner that the court directs.

Note

Section 36H provides that a civil forfeiture restraining order may be made in respect of property or an interest in property.

36O Notice requiring declaration of property interests

(1) If a civil forfeiture restraining order is made in respect of property, a police officer must give a notice to each person who the applicant for the civil forfeiture restraining order believes has an interest in that property requiring the person to give to the police officer a written declaration of property interests.



(b) state the effect of section 36R.

36P What must be included in a declaration of property interests?

(1) A person who has been given a notice under section 36O must provide a written declaration of property interests that states whether that person—

(a) has an interest in the property; and

(b) believes that any other person has an interest in the property.

S. 36O inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).

S. 36O(1) amended by No. 37/2014 s. 10(Sch. item 25.8).

S. 36P inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).



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(2) If the person making the declaration of property interests states that the person has an interest in the property, the person must also state in the declaration the nature and extent of that interest, including—

(a) in relation to a mortgage, the current value of the debt secured by the mortgage;


(3) If the person making the declaration of property interests believes that any other person has an interest in the property, the person making the declaration must state to the best of his or her knowledge the name and address of every other person who has an interest in the property.

Notes






* * * * *

36R Offences

S. 36R inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).



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(1) A person who is given a notice under section 36O must not, without reasonable excuse, fail to give the declaration of property interests required by that notice to a police officer within 14 days after the notice is given to the person.


* * * * *

(3) A person who is given a notice under section 36O must not make a statement in the declaration of property interests required by that notice that is false or misleading in a material particular.


36S Court directions to provide information

(1) If a person who has been given a notice under section 36O—

(a) is convicted of an offence under section 36R(1) or (3); and

(b) has not, prior to that conviction, provided the information that should have been provided in a declaration of property interests as required by the notice under section 36O—


(2) If a person who has been given a notice under section 36O—

S. 36R(1) amended by No. 37/2014 s. 10(Sch. item 25.8).

S. 36S inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).



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(a) is convicted of a Schedule 2 offence in relation to which the civil forfeiture restraining order was made; and

(b) has not, prior to that conviction, provided the information that should have been provided in a declaration of property interests as required by the notice under section 36O; and

(c) does not have a reasonable excuse for failing to provide the information in a declaration of property interests required by the notice under section 36O—


36T Admissibility of statement

(1) A statement made by a person in a declaration of property interests given in response to a notice under section 36O is admissible against that person in—




(2) Any information, document or other thing obtained as a direct or indirect consequence of making a statement in a declaration of property interests given in response to a notice under section 36O is admissible against that person in—



S. 36S(2)(a) amended by No. 55/2014 s. 7.

S. 36T inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).



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36U Application for exclusion from civil forfeiture restraining order

(1) If the Supreme Court or the County Court makes a civil forfeiture restraining order against property, any person claiming an interest in the property may apply to the Court that made that order for a section 36V exclusion order.

(2) An application under subsection (1) must be made—

(a) if notice is required to be given under section 36N, within 30 days after service of notice of the making of the civil forfeiture restraining order; or

(b) in any other case, within 30 days after the making of the civil forfeiture restraining order.

(3) Subject to subsection (3A), 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.

(3A) The court may not extend the period within which an application may be made in respect of property that has been forfeited by or under this Act.


(a) to the applicant for the civil forfeiture restraining order; and

S. 36U inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).

S. 36U(3) amended by No. 77/2013 s. 7(1).

S. 36U(3A) inserted by No. 77/2013 s. 7(2).



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(5) Any person referred to in subsection (4) is entitled to appear and to give evidence at the hearing of an application for a section 36V exclusion order but the absence of that person does not prevent the court from making a section 36V exclusion order.

(6) If the person referred to in subsection (4)(a) proposes to contest an application for a section 36V exclusion order, that person must give the applicant notice of the grounds on which the application is to be contested.

(7) If—

(a) a court makes a civil forfeiture restraining order against property; and

(b) a person claiming an interest in the property is charged with an offence—


(8) If—



S. 36U(7)(a) amended by No. 55/2014 s. 8(1)(a).

S. 36U(7)(b) amended by No. 55/2014 s. 8(1)(b).





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(9) If—


(b) a person claiming an interest in the property is charged with a Schedule 2 offence; and

(c) that person applies for a section 36V exclusion order—


(10) Any person referred to in subsection (4) may apply to the court for an order that the hearing of the application for a section 36V exclusion order be stayed until the charge referred to in subsection (9)(b)—

(a) is finally determined; or

(b) is withdrawn.

Notes





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1 Section 36H provides that a civil forfeiture restraining order may be made in respect of property or an interest in property.

2 Section 36W enables the court to make orders varying the property to which the civil forfeiture restraining order relates.

36V Determination of application for exclusion from civil forfeiture restraining order

(1) On an application under section 36U, the Supreme Court or the County Court, as the case requires, may make an order—

(a) excluding the applicant's interest in the property from the operation of the civil forfeiture restraining order if the court is satisfied that—

(i) the property is not derived property; and

(ii) the property is not tainted property; or

(b) excluding the applicant's interest in the property from the operation of the civil forfeiture restraining order if the court is not satisfied that the property in which the applicant claims an interest is not tainted property or derived property but is satisfied that—

(i) 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—

S. 36V inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).

S. 36V(1)(b)(i) substituted by No. 55/2014 s. 9(1)(a).S. 36V(1)(b)(ii) substituted by No. 55/2014 s. 9(1)(a).



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(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

(iii) where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the relevant Schedule 2 offences, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property or derived property; and

(iv) the applicant's interest in the property—

(A) was not subject to the effective control of another person on the date that the civil forfeiture restraining order was made in relation to the property; or

(B) was subject to the effective control of another person on the date that the civil forfeiture restraining order was made in relation to the property but the person in effective control satisfies subparagraphs (i) to (iii) as if a reference in those subparagraphs to the applicant were a reference to the person in effective control; and

S. 36V(1)(b)(iii) amended by No. 55/2014 s. 9(1)(b).



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(v) where the applicant acquired the interest, directly or indirectly, from another person that—

(A) it was acquired for sufficient consideration; or

(B) if it was not acquired for sufficient consideration, the person from whom the interest was acquired satisfies subparagraphs (i) to (iii) as if a reference in those subparagraphs to the applicant were a reference to the person from whom the interest was acquired.

(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.


relevant Schedule 2 offence means a Schedule 2 offence in relation to which the civil forfeiture restraining order was made.

36W Further orders

(1) The Supreme Court or the County Court, as the case requires, may make any orders in relation to the property to which the civil forfeiture restraining order relates as it considers just.

(2) An order under subsection (1) may be made—

(a) when the court makes a civil forfeiture restraining order; or

(b) at any later time.

S. 36V(3) inserted by No. 55/2014 s. 9(2).

S. 36W inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).



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(a) the applicant for the civil forfeiture restraining order; or

(b) a person to whose property the civil forfeiture restraining order relates or who has an interest in that property; or

(c) a trustee, if the civil forfeiture restraining order directed the trustee to take control of property; or

(d) a prescribed person, or a person belonging to a prescribed class of persons; or



(5) The applicant for an order under subsection (1) must give written notice of the application to each other person referred to in subsections (3)(a) to (3)(d) who could have applied for the order.

(6) Examples of the kind of order that the court may make under subsection (1) are—

(a) an order varying the property to which the civil forfeiture restraining order relates;

(b) an order varying any condition to which the civil forfeiture restraining order is subject;

(c) an order providing for the reasonable living expenses and reasonable business expenses of any person referred to in section 36H(4);



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(d) an order relating to the carrying out of any undertaking given under section 36H(7) in relation to the civil forfeiture restraining order;


(f) an order directing any person whose property the civil forfeiture restraining order relates to or any other person to furnish to such person as the court directs, within the period specified in the order, a statement, verified by the oath or affirmation of that person, setting out such particulars of the property to which the civil forfeiture restraining order relates as the court thinks proper;

(g) an order directing any relevant registration authority not to register any instrument affecting property to which the civil forfeiture restraining order relates while it is in force except in accordance with the order;

(h) if the civil forfeiture restraining order did not direct a trustee or a person holding a prescribed position referred to in section 36H(3) to take control of property in accordance with section 36H(3), an order directing a trustee or a person holding a prescribed position referred to in section 36H(3) to take control of property at any later time specified in the order under subsection (1);

(i) if the civil forfeiture restraining order directed a trustee or a person holding a prescribed position referred to in section 36H(3) to take control of property—

(i) an order regulating the manner in which the trustee or the person holding a

S. 36W(6)(h) amended by No. 55/2014 s. 57(a).

S. 36W(6)(i) amended by No. 55/2014 s. 57(b)(i).

S. 36W(6)(i)(i) amended by No. 55/2014 s. 57(b)(ii).



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prescribed position may exercise powers or perform duties under the civil forfeiture restraining order;


(j) an order directing a person to whose property the civil forfeiture restraining order relates or who has an interest in that property to use or manage specified property to which the civil forfeiture restraining order relates, subject to conditions specified in the order;

(k) an order directing a person prescribed for the purposes of subsection (3)(d), if that person so consents, to do any activity specified in the order that is reasonably necessary for the purpose of managing specified property to which the civil forfeiture restraining order relates.Example


Note

Property is defined as including any interest in property. See section 3(1).

36X Duration and setting aside of civil forfeiture restraining order

(1) A civil forfeiture restraining order 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.

(2) While a civil forfeiture restraining order in respect of an interest in property is in force, if the court

S. 36X inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).



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that made the civil forfeiture restraining order makes a civil forfeiture order in respect of the interest, that court may—

(a) make an order setting aside the civil forfeiture restraining order in respect of the whole or a specified part of the interest; or

(b) make any other order it considers appropriate in relation to the operation of the civil forfeiture restraining order.

(3) The court that made the civil forfeiture restraining order may make an order setting aside a civil forfeiture restraining order on the application of a person if the person gives undertakings satisfactory to the court concerning the person's property.

(4) An order under subsection (2) or (3) may be made so as—

(a) to set aside the civil forfeiture restraining order wholly or in part; and

(b) to take effect—

(i) on the making of the first-mentioned order; or

(ii) at a specified time; or

(iii) if relevant, on the payment of money or the transfer of any interest in property to the Minister; or

(iv) on the happening of some other specified event.

(5) When an order referred to in subsection (4) takes effect, the civil forfeiture restraining order ceases to be in force to the extent to which it is set aside.

(6) An order under subsection (2) or (3) may be made on the application of—



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(b) any person to whose property the civil forfeiture restraining order relates or who has an interest in that property; or

(c) a trustee, if the civil forfeiture restraining order directed the trustee to take control of property; or

(d) any other person who obtains the leave of the court to apply.

(7) The court that makes a civil forfeiture restraining order may make an order setting aside the civil forfeiture restraining order if the civil forfeiture restraining order is no longer required or appropriate.

(8) An order under subsection (7) may be made on the application of the applicant for the civil forfeiture restraining order.

36Y Registration of civil forfeiture restraining order

(1) If—

(a) a civil forfeiture restraining order applies to property of a particular kind; and


the relevant registration authority under that law must, on application to it by the applicant for the civil forfeiture restraining order, record on the register the prescribed particulars of the civil forfeiture restraining order.

(2) Without limiting subsection (1), if a civil forfeiture restraining order relates to land under the operation of the Transfer of Land Act 1958,

S. 36Y inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).



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a caveat may be lodged under section 89 of that Act by any person referred to in that section in relation to that order.

(3) For the purposes of subsection (2) and without limiting that subsection the following persons are taken to be a person mentioned in section 89 of the Transfer of Land Act 1958—


(b) if the civil forfeiture restraining order directed a trustee to take control of the property, the trustee.

Note

Section 36H provides that a restraining order may be made in respect of property or an interest in property.

36Z Contravention of civil forfeiture restraining order

A person who knowingly contravenes a civil forfeiture restraining order by disposing of, or otherwise dealing with, an interest in property to which the order applies is guilty of an indictable offence and liable to—



or to both.

36ZA Priority given to payment of restitution or compensation

S. 36Z inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23), amended by No. 79/2014 s. 47(a).

S. 36Z(b) amended by No. 79/2014 s. 47(b).

S. 36ZA inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).



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(1) If both a civil forfeiture restraining order and a restraining order for the purposes of section 15(1)(e) are made in relation to the same property and an order for restitution or compensation is made under the Sentencing Act 1991 in relation to an offence in reliance on which the civil forfeiture restraining order and the restraining order for the purposes of section 15(1)(e) are made or damages are awarded in relation to that offence, the State must ensure that the order for restitution, compensation or damages is satisfied, in accordance with section 36ZB, to the value of the restrained property, before civil forfeiture of the property which is subject to the civil forfeiture restraining order occurs.

(2) Subsection (1) only applies if—

(a) the property was not subject to a restraining order for a purpose referred to in section 15(1)(a), (b) or (d); or

(b) restitution, compensation or damages have not been fully satisfied in accordance with sections 30 and 31.

36ZB State to pay restitution and compensation out of forfeited property etc.

(1) If—

(a) property is forfeited under this Part in relation to the offence in reliance on which a civil forfeiture restraining order is made; and

(b) an order for restitution or compensation is made under the Sentencing Act 1991 in relation to that offence or damages are awarded in relation to that offence—

the State must satisfy, subject to subsection (2), to the value of the property forfeited (less conversion

S. 36ZA(1) amended by No. 55/2014 s. 10.

S. 36ZB inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).



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costs), the order for restitution, compensation or damages.

(2) If, in relation to an offence, the value of the property forfeited under this Part (less conversion costs) is less than the sum of orders for restitution, compensation or damages, the State must pay to each person awarded restitution, compensation or damages an amount calculated in accordance with the formula—

F ¿ V/A

where—

F is the value of the property forfeited under this Part (less conversion costs);

V is a victim's award of restitution, compensation or damages to the extent that it has not been satisfied;

A is the total of awards of restitution, compensation and damages in respect of the offence.Note


Division 2—Civil forfeiture orders37 Application for civil forfeiture order

(1) If a civil forfeiture restraining order is in force 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 which made the civil forfeiture restraining order for a civil forfeiture order in respect of the property.Note

Only the Supreme Court or the County Court can make a civil forfeiture restraining order.

S. 37 substituted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).



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(2) The applicant must give written notice of the application under subsection (1) to every person who the applicant has reason to believe has an interest in the property.

(3) The court may waive the requirement under subsection (2) to give notice if the court is satisfied either—

(a) that any person who has an interest in the property is present before the court; or

(b) that it is fair to waive the requirement despite any such person not being present.

(4) At any time before the final determination of the application, the court may require the applicant to give notice of the application to any person, in any manner and within any time that the court thinks fit.

(5) Any person notified under subsection (4) and any other person who claims an interest in the property are entitled to appear and to give evidence at the hearing of the application but the absence of a person does not prevent the court from making a civil forfeiture order.

(6) At any time before the final determination of the application, the court may amend the application as it thinks fit, either—

(a) at the request of the applicant; or

(b) with the approval of the applicant.

(7) If an application under subsection (1) has been finally determined, no further application may be made under that subsection in relation to the same Schedule 2 offence or any one or more of the

S. 37(7) amended by No. 55/2014 s. 11.



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same Schedule 2 offences, except with the leave of the court.

(8) The court must not grant leave under subsection (7) unless it is satisfied that—

(a) the property to which the new application relates was derived, realised or identified only after the earlier application was determined; or











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Note

Section 36H provides that a civil forfeiture restraining order may be made in respect of property or an interest in property.

38 Determination of application for civil forfeiture order

(1) On an application under section 37(1) for a civil forfeiture order, the court which made the civil forfeiture restraining order 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 for a section 36V exclusion order in relation to the restrained property.

(1A) For the purposes of subsection (1), an application for a section 36V exclusion order is not pending unless an application under section 36U(1) has been made—

(a) within the period referred to in section 36U(2); or

(b) where, under section 36U(3), the court has extended the period within which the application may be made—within the period as so extended.

(2) The court may exclude particular property or any particular interest in property from the operation of a civil forfeiture order if satisfied that otherwise



S. 38(2) amended by No. 55/2014 s. 15.



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undue hardship may reasonably be likely to be caused to any person by the order.

(3) A civil forfeiture order must specify the interests in property to which it applies.

(4) Subject to any rules of court, the court may take into account in determining the application any material that it thinks fit.

(5) The making of a civil forfeiture order does not prevent the making of a pecuniary penalty order.

39 Consent orders

(1) The court which made a civil forfeiture restraining order may make a civil forfeiture order by consent of—

(a) the applicant; and

(b) the respondent; and

(c) any person whom it has reason to believe has an interest in property in respect of which the order is made.

(2) A law enforcement agency or an applicant for a civil forfeiture order must not enter into an agreement to settle any matter in respect of which a civil forfeiture order could be made under this Division and which involves the payment of money or the transfer of any interest in property to the Minister except—







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(d) with the approval of the court.

40 Forfeiture of property that may be used as evidence in trial

A civil forfeiture order may be made in respect of any interest in property that may have evidentiary value in any criminal proceedings but the property must not be disposed of or otherwise dealt with before the end of the appeal period in relation to those proceedings.

Division 3—Orders for exclusion from civil forfeiture orders

40A Application for exclusion from civil forfeiture order

(1) Subject to subsections (2) and (4), if property is forfeited to the Minister under section 38, a person who claims to have had an interest in the property immediately before it was forfeited may apply to the court that made the relevant civil forfeiture order under section 38 for a section 40B exclusion order excluding the interest in the property from the civil forfeiture order.Note

Only the Supreme Court or the County Court can make a civil forfeiture order under section 38.

(2) Subject to subsection (3), the application must 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 (5A), the court that made the relevant civil forfeiture order under section 38


S. 40A inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).

S. 40A(3) amended by No. 77/2013 s. 9(1).



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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) Except with the leave of the court, an application for a section 40B exclusion order 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 civil forfeiture restraining order; or

(b) the making of the civil forfeiture restraining order.

(5) Subject to subsection (5A), the court may grant a person leave under subsection (4) to make an application if it is satisfied that the person's failure to seek to have that person's interest in the property excluded from the civil forfeiture restraining order was not due to neglect on the part of the applicant.

(5A) 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.

(6) An applicant must give written notice of the application, and, subject to subsection (11), of the grounds on which it is made—

(a) to the applicant for the civil forfeiture order; 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).

S. 40A(5) amended by No. 77/2013 s. 9(1).


S. 40A(6)(b) amended by No. 77/2013 s. 9(3)(a).

S. 40A(6)(c) inserted by No. 77/2013 s. 9(3)(b).



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(7) Any person notified under subsection (6) 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 a section 40B exclusion order.

(8) If the applicant for the civil forfeiture order proposes to contest an application under this section for a section 40B exclusion order, that applicant must give the applicant for the section 40B exclusion order written notice of the grounds on which the application for the section 40B exclusion order is to be contested.

(9) If—

(a) a court makes a civil forfeiture order against property; and



(10) If—



S. 40A(9)(a) amended by No. 55/2014 s. 12(1)(a).

S. 40A(9)(b) amended by No. 55/2014 s. 12(1)(b).





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(11) If—


(b) a person claiming an interest in the property is charged with a Schedule 2 offence; and

(c) that person applies under this section for a section 40B exclusion order—


(12) Any person referred to in subsection (6) may apply to the court for an order that the hearing of the application for a section 40B exclusion order be stayed until the charge referred to in subsection (11)(b)—


(b) is withdrawn.

40B Determination of application for exclusion from civil forfeiture order

(1) On an application made under section 40A, the court may make an order excluding the applicant's interest in property from the operation of a civil forfeiture order—



S. 40B inserted by No. 68/2010 s. 49 (as amended by No. 73/2011 ss 21–23).



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(a) if the court is satisfied that—

(i) the interest in the property is not derived property; and

(ii) the interest in the property is not tainted property; or

(b) if the court is not satisfied that the property in which the applicant claims an interest is not tainted property or derived property but is satisfied that—

(i) 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

(iii) where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the relevant Schedule 2 offences, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property or derived property; and

(iv) the applicant's interest in the property—

S. 40B(1)(b)(i) substituted by No. 55/2014 s. 13(1)(a).S. 40B(1)(b)(ii) substituted by No. 55/2014 s. 13(1)(a).

S. 40B(1)(b)(iii) amended by No. 55/2014 s. 13(1)(b).



143

(A) was not subject to the effective control of another person on the date that the civil forfeiture order was made in relation to the property; or

(B) was subject to the effective control of another person on the date that the civil forfeiture order was made in relation to the property but the person in effective control satisfies subparagraphs (i) to (iii) as if a reference in those subparagraphs to the applicant were a reference to the person in effective control; and

(v) where the applicant acquired the interest, directly or indirectly, from another person that—

(A) it was acquired for sufficient consideration; or

(B) if it was not acquired for sufficient consideration, the person from whom the interest was acquired satisfies subparagraphs (i) to (iii) as if a reference in those subparagraphs to the applicant were a reference to the person from whom the interest was acquired.

(2) If the court makes an exclusion order under subsection (1), it may also make an order declaring the nature, extent and value of the applicant's interest in the property.


S. 40B(3) inserted by No. 55/2014 s. 13(2).



144

relevant Schedule 2 offence means a Schedule 2 offence in relation to which the civil forfeiture restraining order was made.



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Part 4A—Unexplained wealth

Division 1—Unexplained wealth restraining orders

40C Unexplained wealth restraining orders

(1) An unexplained wealth restraining order is an order that no property or interest in property, that is property or an interest to which the order applies, is to be disposed of, or otherwise dealt with by any person except in the manner and circumstances (if any) specified in the order.

(2) If a provision of this Act confers a power to apply for an unexplained wealth restraining order in respect of property in which a person has an interest, the application may be made in respect of one or more of the following—






(3) If the court, when making an unexplained wealth restraining order, considers that the circumstances so require, the order may direct one of the

Pt 4A (Headings and ss 40C–40ZD) inserted by No. 79/2014 s. 16.


S. 40C(3) substituted by No. 20/2015 s. 3.



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following to take control of some or all of the property specified in the order—



(4) An unexplained wealth restraining order may, at the time it is made or at a later time, provide for meeting—


(b) the reasonable business expenses—

of any person to whose property the order applies if the court that makes or made the order is satisfied that these expenses cannot be met from unrestrained property or income of the person.

(5) The court, in making an unexplained wealth restraining order, must not provide for the payment of legal expenses in respect of any legal proceeding, whether criminal or civil.

(6) Subject to subsections (4) and (5), an unexplained wealth restraining order may be made subject to any conditions that the court making the order thinks fit.

(7) The court may refuse to make an unexplained wealth restraining order if the DPP or another person or body on behalf of the State refuses or fails to give to the court any undertakings that the court considers appropriate concerning the payment of damages or costs in relation to the making and operation of the order.

40D Purpose for which an unexplained wealth restraining order may be made




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(1) An unexplained wealth restraining order may be made to preserve property or an interest in property in order that the property or interest will be available to satisfy forfeiture of property that may occur under Division 2.

(2) If a court makes an unexplained wealth restraining order in respect of property or an interest in property, the unexplained wealth restraining order must state that the property or interest is restrained to preserve property or an interest in property so that the property or interest will be available for unexplained wealth forfeiture.

40E Property may be subject to both unexplained wealth restraining order and other orders

(1) In addition to being subject to an unexplained wealth restraining order, property or an interest in property may be subject to either or both of the following—

(a) a restraining order under Part 2;

(b) a civil forfeiture restraining order.

(2) If an unexplained wealth restraining order and a restraining order under Part 2 made for the purposes of section 15(1)(a), (b) or (c) or a civil forfeiture restraining order (or both) apply to the same property or interest in property, the unexplained wealth restraining order, to the extent that it applies to that property or interest in property, remains in operation until the earliest of the following—

(a) the property being able to be disposed of in accordance with section 44(2) because automatic forfeiture of the property has occurred under section 35 in relation to a Schedule 2 offence;




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(b) 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;

(c) the property being able to be disposed of in accordance with section 44(2) because a forfeiture order under Division 1 of Part 3 has been made in relation to the property;

(d) 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 property;

(e) the unexplained wealth restraining order being set aside in whole or in relation to the property or interest in property under section 40X;

(f) the property or interest in property being excluded from the operation of the unexplained wealth restraining order by an unexplained wealth forfeiture exclusion order.

40F Application for unexplained wealth restraining order

(1) The DPP or an appropriate officer may apply without notice to a court for an unexplained wealth restraining order in respect of property if a police officer suspects on reasonable grounds that—

(a) a person has engaged in serious criminal activity; and

(b) that person has an interest in the property; and




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(c) in the case of property located outside Victoria—that serious criminal activity occurred within Victoria; and

(d) the total value of the property that is the subject of the application is $50 000 or more.

(2) The DPP or an appropriate officer may apply without notice to a court for an unexplained wealth restraining order in respect of property if a police officer suspects on reasonable grounds that—

(a) the property was not lawfully acquired; and

(b) either—

(i) the property is located in Victoria; or

(ii) the person who has acquired the property is ordinarily resident in Victoria.

(3) An application under subsection (1) or (2) must be supported by an affidavit of a police officer—

(a) setting out any relevant matters; and

(b) in the case of an application under subsection (1), stating that the police officer suspects that—

(i) a person has engaged in serious criminal activity; and

(ii) that person has an interest in the property; and

(iii) in the case of property located outside Victoria—that serious criminal activity occurred within Victoria; and

(iv) the total value of the property that is the subject of the application is $50 000 or more; and



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(c) in the case of an application under subsection (2), stating that the police officer suspects that—

(i) the property was not lawfully acquired; and

(ii) either—

(A) the property is located in Victoria; or

(B) the person who has acquired the property is ordinarily resident in Victoria; and

(d) setting out the grounds on which the police officer has the suspicion referred to in paragraph (b) or (c) (as the case may be).

(4) In addition, an affidavit supporting an application under subsection (2) must identify the person who has or the persons who have an interest in the property suspected of not having been lawfully acquired if that information is known to the police officer at the time of the application.

(5) An application under subsection (1) for an unexplained wealth restraining order does not need to specify a particular offence constituting the serious criminal activity but may specify one or more offences that constitute the serious criminal activity.

(6) For the purposes of this section, property in which a person has an interest includes—

(a) property that is subject to the effective control of the person; and

(b) property that was the subject of a gift from the person to another person regardless of when the gift was made.



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(7) An application for a restraining order or a civil forfeiture restraining order in relation to property or an interest in property does not preclude an application for an unexplained wealth restraining order being made in relation to the same property or interest in property.

(8) An application for an unexplained wealth restraining order may be made more than once in respect of the same property or interest in property.Example

Separate applications under subsections (1) and (2) may be made in respect of the same property or the same interest in property.

(9) An application for an unexplained wealth restraining order in relation to property or an interest in property made on the basis of serious criminal activity does not preclude an application for a further unexplained wealth restraining order being made in relation to other property or another interest in property on the basis of the same serious criminal activity.

40G Property lawfully acquired

(1) For the purposes of this Part—

(a) property acquired by a person for sufficient consideration that has otherwise been lawfully acquired is taken to have been lawfully acquired only if the consideration given for the property by the person was lawfully acquired;

(b) property acquired by a person other than for sufficient consideration or on the distribution of the estate of a deceased person is taken to have been lawfully acquired only if the person from whom it was acquired or the




152

deceased person (as the case may be) lawfully acquired the property;Note

The effect of paragraph (b) is that if, for example, the donor of property given as a gift to the person received the property as a gift from someone else who acquired the property unlawfully, the property remains property that has not been lawfully acquired.

(c) property acquired by a person as a prize or as the proceeds of any form of gambling is taken to have been lawfully acquired only if any money or other item of value used by the person for the purposes of entering the prize draw or for the purposes of the gambling (as the case may be) was lawfully acquired;

(d) property acquired by a person in the form of investment income is taken to have been lawfully acquired only if the property from which the investment income was derived was lawfully acquired;

(e) property derived by a person from salary or wages or from payment under a contract for services is taken to have been lawfully acquired only if the salary or wages or the payment for the services (as the case may be)—

(i) did not exceed the reasonable market rate applying at the time for the labour or services provided; or

(ii) were lawfully acquired by the person from whom they were received;

(f) property acquired by a person, whether or not it is acquired for sufficient consideration, is not property lawfully acquired if the person acquired the property knowing, or in circumstances such as to arouse a reasonable

S. 40G(1)(f) substituted by No. 27/2016 s. 14.



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suspicion, that the property was derived or realised, or substantially derived or realised, directly or indirectly, from any unlawful activity;

(g) property acquired by a person that is or has been subject to a mortgage, lien, charge, security or other encumbrance is not property lawfully acquired if that mortgage, lien, charge, security or other encumbrance has been wholly or partly discharged using property that was not lawfully acquired.

(2) Subsection (1) does not limit the criteria for determining for the purposes of this Part whether or not property has been lawfully acquired.

(3) Despite subsection (1)(f), a person who acquires the property from the sale or disposal of the property under this Act lawfully acquires the property unless any consideration paid for the property has not been lawfully acquired.

40H Procedure on application for unexplained wealth restraining order

(1) On an application under section 40F, if the court, having regard to the matters referred to in subsection (2), is satisfied that the circumstances of the case justify the giving of notice to a person affected, the court may direct an applicant for an unexplained wealth restraining order to give notice of the application for that order to any person whom the court has reason to believe has an interest in the property that is the subject of the application.

(2) In determining whether the circumstances of the case justify the giving of notice, the court must have regard to—

(a) the aim of preserving the property that is the subject of the application so as to ensure its

S. 40G(1)(g) inserted by No. 27/2016 s. 14.




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availability for the purpose of unexplained wealth forfeiture; and



(d) the provision made by this Act to enable a person claiming an interest in property the subject of an unexplained wealth restraining order to apply for a section 40S exclusion order to protect that interest from the operation of the unexplained wealth restraining order; and

(e) the limited duration of an unexplained wealth restraining order; and


(3) In determining whether to direct an applicant to give notice of an application for an unexplained wealth restraining order, the court may have regard to any other matter that the court considers relevant.

(4) If the court requires notice of an application for an unexplained wealth restraining order to be given under subsection (1) and the application is withdrawn because of that requirement, the court must not award costs in relation to the application.

(5) If the court does not require notice of an application for an unexplained wealth restraining order to be given under subsection (1), it may hear



155

and determine the application in the absence of any person who has an interest in the property that is the subject of the application.

(6) Any person notified under subsection (1) 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 unexplained wealth restraining order.








40I Determination of application for unexplained wealth restraining order

(1) On an application under section 40F(1) for an unexplained wealth restraining order, the court must make an unexplained wealth restraining order if it is satisfied that—

(a) the deponent of the affidavit supporting the application does suspect that—




156

(i) a person has engaged in serious criminal activity; and

(ii) that person has an interest in the property sought to be restrained; and

(iii) in the case of property located outside Victoria—the serious criminal activity occurred in Victoria; and

(iv) the total value of the property is $50 000 or more; and

(b) there are reasonable grounds for the suspicion referred to in paragraph (a)(i), (ii) and (iii).

(2) The court may be satisfied that the deponent of the affidavit reasonably suspects that a person with an interest in the property has engaged in serious criminal activity—

(a) regardless of whether that person, or any other person, has been charged with, tried for, acquitted or convicted of, or has had a conviction quashed, pardoned or set aside for, an offence that is, or offences that are, suspected of constituting the serious criminal activity; and

(b) where more than one offence is specified as constituting the serious criminal activity—if the court is satisfied that the deponent reasonably suspects that the conduct of the person constitutes at least one of those offences.

(3) On an application under section 40F(2) for an unexplained wealth restraining order, the court must make an unexplained wealth restraining order if it is satisfied that—

(a) the deponent of the affidavit supporting the application does suspect that—



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(i) the property sought to be restrained was not lawfully acquired; and

(ii) either—

(A) the property is located in Victoria; or

(B) the person who has acquired the property is ordinarily resident in Victoria; and

(b) there are reasonable grounds for that suspicion.

(4) For the purposes of subsection (3)(b), in determining whether there are reasonable grounds for suspecting that property was not lawfully acquired, the court may have regard to one or more of the following—

(a) the lawful income of a person with an interest in, or effective control of, the property;

(b) any suspected unlawful activity of a person with an interest in, or effective control of, the property;

(c) the prior ownership of the property and any suspected unlawful activity of a person, or persons, who previously owned the property;

(d) the circumstances under which the property has come to the attention of Victoria Police;

(e) any other relevant matter.

40J Notice of unexplained wealth restraining order to be given to persons affected

(1) If—

(a) an unexplained wealth restraining order is made in respect of property of a person; and




158

(b) notice had not been given to that person of the application for the unexplained wealth restraining order—

the applicant must give written notice of the making of the unexplained wealth restraining order to that person.

(2) If a person to whom notice must be given under subsection (1) cannot be found after all reasonable steps have been taken to locate the person, the applicant must give notice to that person in any other manner that the court directs.

Note

Section 40C provides that an unexplained wealth restraining order may be made in respect of property or an interest in property.

40K Notice requiring declaration of interests in restrained property

(1) Subject to subsection (2), if an unexplained wealth restraining order is made in respect of property, a police officer must give a notice to each person who the applicant for the unexplained wealth restraining order believes has an interest in that property requiring the person to give to the police officer a written declaration of interests in restrained property.

(2) If a notice under section 40M is given to a person who the applicant for the unexplained wealth restraining order believes has an interest in property restrained under the unexplained wealth restraining order, a police officer may, but is not required to, issue a notice under subsection (1).



(b) state the effect of section 40O.

40L What must be included in a declaration of interests in restrained property?





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(1) A person who has been given a notice under section 40K must provide a written declaration in relation to each item of property specified to be restrained in the unexplained wealth restraining order that states whether that person—

(a) has an interest in the item of property; and

(b) believes that any other person has an interest in the item of property.

(2) If the person making the declaration of interests in restrained property states that the person has an interest in an item of property, the person must also state in the declaration the nature and extent of that interest, including—

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


(3) If the person making the declaration of interests in restrained property believes that any other person has an interest in the property, the person making the declaration must state to the best of his or her knowledge the name and address of every other person who has an interest in the property.

Notes








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40M Notice to person suspected of engaging in serious criminal activity

(1) If an unexplained wealth restraining order is made under section 40I(1) on the basis that a person is suspected of having engaged in serious criminal activity, a police officer may give a notice to the person requiring the person to give to the police officer a written declaration of the person's property interests.



(b) state the effect of section 40O.

(3) If a person suspected of having engaged in serious criminal activity is also a person to whom a notice under section 40K must be given—

(a) a notice under subsection (1) may be given in place of the notice under section 40K; and

(b) the giving of a notice to the person under section 40K does not preclude the giving of a notice to the person under subsection (1) at a later date.

40N What must be included in a declaration by an owner of property?

(1) Subject to subsection (2), a person who has been given a notice under section 40M must provide a written declaration of property interests that states the following information—

(a) particulars of any sources of income of the person, including bequests;

(b) any bank or building society accounts held by the person, whether solely or jointly;

(c) any real property in which the person holds an interest;

S. 40M inserted by No. 79/2014 s. 16.

S. 40N inserted by No. 79/2014 s. 16.



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(d) any unit trusts, ledgers, shares or debentures in which the person holds an interest;

(e) the amount of any cash held by the person, including cash held as virtual currency, and the source of the cash;

(f) any motor vehicles, boats, works of art, livestock or jewellery owned by the person that have an individual value of $5000 or more;

(g) any safe deposit boxes held by the person;

(h) any charge and credit cards held by the person;

(i) any accounts held by the person for the purposes of gambling;

(j) any trusts in which the person has a beneficial interest;

(k) any transfers of property made by the person to another person in the previous 6 years if the total value of those transfers is $50 000 or more;

(l) any transfers of property to the person made by another person in the previous 6 years if the total value of those transfers is $50 000 or more.

(2) In addition, if a notice under section 40M is given to a person in place of a notice under section 40K, the declaration must include any statement required under section 40L.Note



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Section 40M(3)(a) provides that a notice under section 40M may be given to a person in place of a notice under section 40K.

40O Offences

(1) A person who is given a notice under section 40K must not, without reasonable excuse, fail to give the declaration of property interests required by that notice to a police officer within 14 days after the notice is given to the person.


(2) A person who is given a notice under section 40M must not, without reasonable excuse, fail to give the declaration of property interests required by that notice to a police officer within 28 days after the notice is given to the person.


(3) A person who is given a notice under section 40K or 40M must not make a statement in the declaration of property interests required by that notice that is false or misleading in a material particular.


40P Court directions to provide information

(1) If a person who has been given a notice under section 40K or 40M—

(a) is convicted of an offence under section 40O(1), (2) or (3); and

(b) has not, prior to that conviction, provided the information that should have been provided in a declaration of property interests as required by the notice under section 40K or 40M—

S. 40O inserted by No. 79/2014 s. 16.

S. 40P inserted by No. 79/2014 s. 16.



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(2) If a person who has been given a notice under section 40K or 40M—

(a) is convicted of any other offence; and

(b) has not, prior to that conviction, provided the information that should have been provided in a declaration of property interests as required by the notice under section 40K or 40M; and

(c) does not have a reasonable excuse for failing to provide the information in a declaration of property interests required by the notice under section 40K or 40M—


40Q Admissibility of statement

(1) A statement made by a person in a declaration of property interests given in response to a notice under section 40K or 40M is admissible against that person in—




(2) Any information, document or other thing obtained as a direct or indirect consequence of making a statement in a declaration of property

S. 40Q inserted by No. 79/2014 s. 16.



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interests given in response to a notice under section 40K or 40M is admissible against that person in—




40R Application for exclusion from unexplained wealth restraining order

(1) If a court makes an unexplained wealth restraining order against property, any person claiming an interest in the property may apply to the court that made that order for a section 40S exclusion order.

(2) An application under subsection (1) must be made—

(a) if notice is required to be given under section 40J—within 90 days after service of notice of the making of the unexplained wealth restraining order; or

(b) in any other case—within 90 days after the making of the unexplained wealth restraining order.

(3) Subject to subsection (4), 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.

(4) The court may not extend the period within which an application may be made in respect of property that has been forfeited by or under this Act.


S. 40R inserted by No. 79/2014 s. 16.



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(a) to the applicant for the unexplained wealth restraining order; and


(6) Any person referred to in subsection (5) is entitled to appear and to give evidence at the hearing of an application for a section 40S exclusion order but the absence of that person does not prevent the court from making a section 40S exclusion order.

(7) If the person referred to in subsection (5)(a) proposes to contest an application for a section 40S exclusion order, that person must give the applicant notice of the grounds on which the application is to be contested.

(8) If a person claiming an interest in the property is charged with an 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.

(9) If a person claiming an interest in the property is charged with an offence, any information, document or thing obtained as a direct or indirect consequence of 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.

(10) If—

(a) a person applies under this section for a section 40S exclusion order; and



166

(b) that person is charged with an offence relevant to the application for the section 40S exclusion order; and

(c) that person has made an application under subsection (11)—

the person need not give notice of the grounds on which the application for the section 40S exclusion order is made until the application under subsection (11) has been determined.

(11) Any person referred to in subsection (5) may apply to the court for an order that the hearing of the application for a section 40S exclusion order be stayed until the charge referred to in subsection (10)(b)—


(b) is withdrawn.

(12) The court may only order that the hearing of the application for a section 40S exclusion order be stayed if the court considers that not ordering a stay of the hearing would prejudice the fairness of the hearing of the charge.Notes

1 Section 40C provides that an unexplained wealth restraining order may be made in respect of property or an interest in property.

2 Section 40W enables the court to make orders varying the property to which the unexplained wealth restraining order relates.

40S Determination of application for exclusion from unexplained wealth restraining order

(1) On an application under section 40R, the court may make an order excluding the applicant's interest in property from the operation of the unexplained wealth restraining order if the court is

S. 40S inserted by No. 79/2014 s. 16.



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satisfied that the property was lawfully acquired by the applicant.

(2) For the purposes of this section, the applicant's interest in property is presumed not to have been lawfully acquired unless the applicant proves otherwise.

(3) An order under subsection (1) made in respect of an interest in property excludes the interest in property from the unexplained wealth restraining order with effect from—

(a) 30 days after the date of the order; or

(b) such later date as the court sees fit.

(4) 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.

40T Evidentiary requirements for exclusion order

(1) At a hearing of an application for an section 40S exclusion order, the applicant for the order must provide documentary evidence of any transactions alleged by the applicant to have occurred that would support the claim that the property that is the subject of the application was lawfully acquired by the applicant.

(2) The court hearing the application may accept evidence other than documentary evidence if—

(a) that other evidence is provided in addition to documentary evidence of the transaction; or

(b) the court is satisfied that it is not reasonable to expect documentary evidence to exist because of the nature of the transfer of property, the effluxion of time or any other reason.

S. 40T inserted by No. 79/2014 s. 16.



168

40U Application for substitution order

(1) If—

(a) a court has made a section 40S exclusion order excluding property (the excluded property) from the operation of an unexplained wealth restraining order; and

(b) the owner of the excluded property owns or controls other property (the restrained property), not less than the value of the excluded property, which remains subject to the unexplained wealth restraining order but is unlikely to be able to vest in the Minister—

the applicant for the unexplained wealth restraining order may apply to the court for a substitution order to substitute the excluded property for the restrained property for the purposes of unexplained wealth forfeiture.

(2) An application under subsection (1) must be made within 30 days after the making of the section 40S exclusion order and must—

(a) specify the excluded property; and

(b) specify the restrained property; and

(c) state why, in the opinion of the applicant, it is unlikely that the restrained property is unlikely to be able to vest in the Minister.

(3) On the application for a substitution order under subsection (1), the section 40S exclusion order is stayed to the extent that it applies to the excluded property until a determination of the application is made under section 40V.

S. 40U inserted by No. 79/2014 s. 16.



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40V Determination of application for substitution order

(1) Subject to subsection (3), on an application under section 40U, a court may make a substitution order if the court is satisfied that—

(a) a person owns or controls the property (the restrained property) specified in the application as being subject to an unexplained wealth restraining order; and

(b) if the restrained property is forfeited to the Minister under unexplained wealth forfeiture, it is unlikely that it will be able to vest in the Minister; andExamples

The property is held in another jurisdiction or the property has been dealt with contrary to the unexplained wealth restraining order.

(c) the person owns or controls property of the same or lesser value (the excluded property)—

(i) in relation to which a section 40S exclusion order has been made excluding the property from the operation of the unexplained wealth restraining order; and

(ii) that, if it were subject to the unexplained wealth restraining order, would be available for forfeiture; and

(d) it is appropriate that the excluded property be substituted for the restrained property.

(2) For the purposes of subsection (1)(d), in determining whether it is appropriate that the

S. 40V inserted by No. 79/2014 s. 16.



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excluded property be substituted for the restrained property, the court may have regard to—

(a) the extent to which the owner of the property has complied with the unexplained wealth restraining order; and

(b) the extent to which the owner's conduct has affected the likelihood of the restrained property being available to vest in the Minister, were it to be subject to unexplained wealth forfeiture; and

(c) the extent to which it appears the owner has structured the owner's assets so as to circumvent the operation of this Act; and

(d) the likelihood that the restrained property will be subject to forfeiture in another jurisdiction; and

(e) the goal of depriving persons engaged in serious criminal activity of property not lawfully acquired.

(3) The court must not make an order under subsection (1) in respect of property that is unavailable for forfeiture because the property is held in another jurisdiction if—

(a) the property is restrained or has been forfeited in that other jurisdiction under a law corresponding to this Act or any part of this Act; or

(b) in the case of property in respect of which an unexplained wealth restraining order was made on the basis that the person who owned or controlled the property has engaged in serious criminal activity—the serious criminal activity occurred outside Victoria.



171

(4) Subsection (3)(b) does not apply to any property that has been moved outside Victoria contrary to the terms of the unexplained wealth restraining order.

(5) If the court makes a substitution order under subsection (1)—

(a) the excluded property is substituted for the restrained property; and

(b) the section 40S exclusion order ceases to have effect, to the extent that it applies to the excluded property; and

(c) the restrained property ceases to be subject to the restraining order.

40W Further orders

(1) The court may make any orders in relation to the property to which the unexplained wealth restraining order relates as it considers just.

(2) An order under subsection (1) may be made—

(a) when the court makes an unexplained wealth restraining order; or

(b) at any later time.


(a) the applicant for the unexplained wealth restraining order; or

(b) a person to whose property the unexplained wealth restraining order relates or who has an interest in that property; or

(c) a trustee, if the unexplained wealth restraining order directed the trustee to take control of property; or

S. 40W inserted by No. 79/2014 s. 16.



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(d) a prescribed person, or a person belonging to a prescribed class of persons; or



(5) The applicant for an order under subsection (1) must give written notice of the application to each other person referred to in subsection (3)(a) to (3)(c) who could have applied for the order.

(6) Examples of the kind of order that the court may make under subsection (1) include the following—

(a) an order varying the property to which the unexplained wealth restraining order relates;

(b) an order varying any condition to which the unexplained wealth restraining order is subject;

(c) an order providing for the reasonable living expenses and reasonable business expenses of any person referred to in section 40C(4);

(d) an order relating to the carrying out of any undertaking given under section 40C(7) in relation to the unexplained wealth restraining order;


(f) an order directing any person whose property the unexplained wealth restraining order relates to or any other person to furnish to such person as the court directs, within the



173

period specified in the order, a statement, verified by the oath or affirmation of that person, setting out such particulars of the property to which the unexplained wealth restraining order relates as the court thinks proper;

(g) an order directing any relevant registration authority not to register any instrument affecting property to which the unexplained wealth restraining order relates while it is in force except in accordance with the order;

(h) if the unexplained wealth restraining order did not direct a trustee to take control of property in accordance with section 40C(3), an order directing a trustee to take control of property at any later time specified in the order under subsection (1);

(i) if the unexplained wealth restraining order directed a trustee to take control of property—

(i) an order regulating the manner in which the trustee may exercise powers or perform duties under the unexplained wealth restraining order;


(j) an order directing a person to whose property the unexplained wealth restraining order relates or who has an interest in that property to use or manage specified property to which the unexplained wealth restraining order relates, subject to conditions specified in the order;

(k) an order directing a person prescribed for the purposes of subsection (3)(d), if that person so consents, to do any activity specified in



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the order that is reasonably necessary for the purpose of managing specified property to which the unexplained wealth restraining order relates.Example


Note


40X Setting aside of unexplained wealth restraining order

On the application of the applicant for an unexplained wealth restraining order, the court that made the unexplained wealth restraining order may make an order setting aside the unexplained wealth restraining order if satisfied that the unexplained wealth restraining order is no longer required or appropriate.

40Y Registration of unexplained wealth restraining order

(1) If—

(a) an unexplained wealth restraining order applies to property of a particular kind; and


the relevant registration authority under that law must, on application to it by the applicant for the unexplained wealth restraining order, record on the register the prescribed particulars of the unexplained wealth restraining order.

(2) Without limiting subsection (1), if an unexplained wealth restraining order relates to land under the

S. 40X inserted by No. 79/2014 s. 16.

S. 40Y inserted by No. 79/2014 s. 16.



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operation of the Transfer of Land Act 1958, a caveat may be lodged under section 89 of that Act by any person referred to in that section in relation to that order.

(3) For the purposes of subsection (2) and without limiting that subsection the following persons are taken to be a person mentioned in section 89 of the Transfer of Land Act 1958—

(a) the applicant for the unexplained wealth restraining order;

(b) if the unexplained wealth restraining order directed a trustee to take control of the property, the trustee.

Note


40Z Contravention of unexplained wealth restraining order

(1) A person who knowingly contravenes an unexplained wealth restraining order by disposing of, or otherwise dealing with, an interest in property to which the order applies is guilty of an indictable offence and liable to—



or to both.

(2) If the prescribed particulars referred to in section 40Y(1) are recorded as required by that section, a person who disposes of, or otherwise deals with, an interest in property after the recording of those particulars is, for the purposes

S. 40Z inserted by No. 79/2014 s. 16.



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of subsection (1), to be taken to know of the unexplained wealth restraining order.

Division 2—Forfeiture of unexplained wealth40ZA Forfeiture of unexplained wealth

(1) Subject to subsection (2), property that is the subject of an unexplained wealth restraining order is forfeited to the Minister on the expiry of 6 months after the making of the unexplained wealth restraining order.

(2) If, on the expiry of the 6 months referred to in subsection (1), an application under section 40R 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.

(3) For the purposes of subsection (2), an application under section 40R is not pending unless an application under section 40R(1) has been made—

(a) within the period referred to in section 40R(2); or

(b) where, under section 40R(3), the court has extended the period in which the application may be made—within the period as so extended and before the expiry of the period of 6 months referred to in subsection (1).

S. 40ZA inserted by No. 79/2014 s. 16.



177

40ZB Declaration that property has been forfeited

(1) The applicant for an unexplained wealth restraining order may apply to the court that made that order for a declaration that property that was subject to the unexplained wealth restraining order has been forfeited to the Minister under section 40ZA.

(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


(3) On an application under subsection (1), the court, if satisfied that the property has been forfeited to the Minister under section 40ZA, must make a declaration accordingly.

40ZC Application for exclusion from unexplained wealth forfeiture

(1) Subject to subsection (2), if property is forfeited to the Minister under section 40ZA, a person who claims to have had an interest in the property immediately before it was forfeited may apply to the court that made the relevant unexplained wealth restraining order for a section 40ZD exclusion order excluding the interest in the property from unexplained wealth forfeiture.

(2) The application—

(a) must not be made except with the leave of the court; and

S. 40ZB inserted by No. 79/2014 s. 16.

S. 40ZC inserted by No. 79/2014 s. 16.



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(b) must 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 (4), the court may grant a person leave under subsection (2)(a) to make an application if it is satisfied that the person's failure to seek to have that person's interest in the property excluded from the unexplained wealth restraining order was not due to neglect on the part of the applicant.

(4) The court may not grant a person leave under subsection (3) to make an application in respect of property that has been disposed of in accordance with section 44.

(5) An applicant must give written notice of the application, and, subject to subsection (10), of the grounds on which it is made—

(a) to the applicant for the unexplained wealth restraining order; and



(6) Any person notified under subsection (5) 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 a section 40ZD exclusion order.

(7) If the applicant for the unexplained wealth restraining order proposes to contest an application under this section for a section 40ZD exclusion order, that applicant must give the applicant for the section 40ZD exclusion order written notice of the grounds on which the



179

application for the section 40ZD exclusion order is to be contested.

(8) If a person claiming an interest in the property is charged with an 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.

(9) If a person claiming an interest in the property is charged with an offence, any information, document or thing obtained as a direct or indirect consequence of 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.

(10) If—

(a) a person applies under this section for a section 40ZD exclusion order; and

(b) that person is charged with an offence relevant to the application for the section 40ZD exclusion order; and

(c) that person has made an application under subsection (11)—

the person need not give notice of the grounds on which the application for the section 40ZD exclusion order is made until the application under subsection (11) is determined.

(11) The applicant for the section 40ZD exclusion order or any person referred to in subsection (5)(a) or (b) may apply to the court for an order that the hearing of the application for the exclusion order



180

be stayed until the charge referred to in subsection (10)(b)—


(b) is withdrawn.

(12) The court may only order that the hearing of the application for a section 40ZD exclusion order be stayed if the court considers that not ordering a stay of the hearing would prejudice the fairness of the hearing of the charge.

40ZD Determination of application for exclusion from unexplained wealth forfeiture

(1) On an application made under section 40ZC, the court may make an order excluding the applicant's interest in property from the operation of unexplained wealth forfeiture if the court is satisfied that the property was lawfully acquired by the applicant.

(2) For the purposes of this section, the applicant's interest in property is presumed not to have been lawfully acquired unless the applicant proves otherwise.

(3) The evidentiary requirements specified in section 40T apply to a hearing of an application for an exclusion order under this section.

(4) If the court makes an exclusion order under subsection (1), it may also make an order declaring the nature, extent and value of the applicant's interest in the property.

S. 40ZD inserted by No. 79/2014 s. 16.



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Part 5—Effect of forfeiture41 Effect of forfeiture

(1) In this section registrable property means property title to which is passed by registration on a register kept by a relevant registration authority.

(2) If—

(a) a court makes a forfeiture order or a civil forfeiture order in respect of property then, immediately on the making of the order; or

(b) property is forfeited to the Minister by automatic forfeiture under section 35 or 36GA; or—

(ba) property is forfeited to the Minister by unexplained wealth forfeiture under section 40ZA—

the property vests in the Minister subject to every mortgage, charge or encumbrance to which it was subject immediately before the order was made or the automatic forfeiture or unexplained wealth forfeiture occurred (as the case may be) and to—

(c) in the case of land, every interest registered, notified or saved under the Transfer of Land Act 1958 or the Property Law Act 1958.

* * * * *

S. 41(2) amended by Nos 43/1998 s. 36(i), 79/2014 s. 17(1)(c).

S. 41(2)(b) amended by Nos 43/1998 s. 36(i), 55/2014 s. 31, 79/2014 s. 17(1)(a).

S. 41(2)(ba) inserted by No. 79/2014 s. 17(1)(b).

S. 41(2)(c) amended by No. 74/2010 s. 37(Sch. item 1(a)).

S. 41(2)(d) repealed by No. 74/2010 s. 37(Sch. item 1(b)).



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(2A) Despite subsection (2), property that vests in the Minister under that subsection is not subject to any mortgage, charge or encumbrance created by an interstate restraining order.

(3) If registrable property is forfeited to the Minister under a forfeiture order or a civil forfeiture order or by automatic forfeiture under section 35 or 36GA or by unexplained wealth forfeiture under section 40ZA—

(a) the property vests in equity in the Minister but does not vest in the Minister at law until the applicable registration requirements have been complied with; and

(b) the Minister is entitled to be registered as owner of the property; and

(c) the Minister or a prescribed person authorised by the Minister for the purposes of this subsection has power to do, or to authorise the doing of, anything necessary or convenient to obtain the registration of the Minister as owner, including but not limited to, the execution of any instrument required to be executed by a person transferring an interest in property of that kind.

(4) If registrable property has been forfeited to the Minister under a forfeiture order or a civil forfeiture order or by automatic forfeiture under section 35 or 36GA or by unexplained wealth forfeiture under section 40ZA, the Minister or the DPP or a prescribed person authorised by the Minister for the purposes of this subsection has power to do anything necessary or convenient to give notice of, or otherwise protect, the equitable interest of the Minister in the property.


S. 41(3) amended by Nos 43/1998 s. 36(i), 55/2014 s. 31, 79/2014 s. 17(2).

S. 41(3)(a) amended by No. 43/1998 s. 36(i).

S. 41(3)(b) amended by No. 43/1998 s. 36(i).

S. 41(3)(c) amended by No. 43/1998 s. 36(h)(i).

S. 41(4) amended by Nos 43/1998 s. 36(h)(i), 55/2014 s. 31, 79/2014 s. 17(2).



183

(5) Section 73(2) of the Personal Property Securities Act 2009 of the Commonwealth applies to any property forfeited to the Minister under this section to the extent, if any, to which that Act applies in relation to the property.

42 Power to discharge mortgage or charge

(1) If the Supreme Court or the County Court is satisfied, on application by—

(a) in the case of property forfeited under a civil forfeiture order, a prescribed person or a person belonging to a prescribed class of persons; or

(b) in any case, the DPP—

that a mortgage or charge to which the property is subject was created to limit the effect of a forfeiture order or a civil forfeiture order or automatic forfeiture or unexplained wealth forfeiture, it may discharge that mortgage or charge.

* * * * *

(3) The Registrar of Titles must make any amendments to the Register under the Transfer of Land Act 1958 that are necessary because of any order under subsection (1).

43 Court may give directions

A court has power to give all directions that are necessary to give effect to a forfeiture order or a civil forfeiture order made by it or to automatic forfeiture or unexplained wealth forfeiture and may, if it is satisfied on reasonable grounds that any directions have not been, or would not be, complied with, make an order directing a person

S. 41(5) inserted by No. 27/2016 s. 15(2).

S. 42(1) amended by No. 79/2014 s. 18.

S. 42(2) repealed by No. 85/1998 s. 24(Sch. item 11).

S. 43 amended by No. 79/2014 s. 19.



184

specified in the order to take control of the forfeited property, or a specified part of the forfeited property.

44 Disposal of forfeited property

(1) If property that is not money is forfeited to the Minister under a forfeiture order or a civil forfeiture order or by automatic forfeiture under section 35 or 36GA or by unexplained wealth forfeiture under section 40ZA then, subject to subsection (2) and to any direction under subsection (4), the Minister or a prescribed person authorised by the Minister for the purposes of this subsection must, as soon as practicable after the property vests in the Minister, sell or otherwise dispose of the property.

(2) Except with the leave of the relevant court, the Minister must not—

(a) dispose of, or otherwise deal with, the property; or

(b) authorise any other person or body to dispose of, or otherwise deal with, the property—

before the end of the appeal period, if any, or, if an application has been made under section 49, 51 or 53 for an exclusion order or under section 40A for a section 40B exclusion order or under section 40ZC for a section 40ZD exclusion order, before the final determination of the application, whichever is later.

(2A) For the purposes of subsection (2), the relevant court is—

(a) in the case of property forfeited under a forfeiture order or a civil forfeiture order—the court which made the order;

S. 44(1) amended by Nos 43/1998 s. 36(j), 55/2014 s. 32(1), 79/2014 s. 20(1).

S. 44(2) amended by Nos 43/1998 s. 36(j), 68/2009 s. 97(Sch. item 23.34), 68/2010 s. 50(1), 55/2014 s. 32(2), substituted by No. 79/2014 s. 20(2).




185

(b) in the case of property forfeited by automatic forfeiture—the court in which the accused was convicted;

(c) in the case of property forfeited by unexplained wealth forfeiture—the court which made the unexplained wealth restraining order.

(3) For the purposes of subsection (2), the appeal period ends—

(a) in the case of a forfeiture order, when an appeal may no longer be lodged against either the forfeiture order or the conviction in reliance on which the order was made or, if such an appeal is lodged, when the appeal is abandoned or finally determined;

(b) in the case of automatic forfeiture under section 35, 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 22 or, if such an appeal is lodged, when the appeal is abandoned or finally determined;

(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;

(c) in the case of a civil forfeiture order, when an appeal may no longer be lodged against either the civil forfeiture order or a refusal to make a section 36V exclusion order or, if

S. 44(3)(b) amended by Nos 43/1998 s. 17(1)(a)(b), 55/2014 s. 32(3).

S. 44(3)(ba) inserted by No. 55/2014 s. 32(4).

S. 44(3)(c) inserted by No. 43/1998 s. 17(2), amended by Nos 68/2010 s. 50(2), 79/2014 s. 20(3)(a).



186

such an appeal is lodged, when the appeal is abandoned or finally determined;

(d) in the case of unexplained wealth forfeiture, when an appeal may no longer be lodged against a refusal to make a section 40S exclusion order or, if such an appeal is lodged, when the appeal is abandoned or finally determined.

(3A) Despite subsection (2), the Minister is not prevented from taking the action specified in subsection (2)(a) or (b) after the end of the appeal period but before the final determination of an application under section 49, 51 or 53 for an exclusion order or an application under section 40A for a section 40B exclusion order unless—

(a) the application has been made—

(i) within the period referred to in section 49(2), 51(2), 53(2) or 40A(2) (as the case may be); or

(ii) after that period, with the leave of the court granted under section 49(3), 51(3), 53(3) or 40A(3) (as the case may be); or

(b) in the case of an application that has been made pursuant to leave granted under section 40A(4), 51(4) or 53(4) (as the case may be)—the leave was granted prior to the disposal of the property.

(3B) Despite subsection (2), the Minister is not prevented from taking action specified in subsection (2)(a) or (b) after the end of the appeal period but before the final determination of an application under section 40ZC for a

S. 44(3)(d) inserted by No. 79/2014 s. 20(3)(b).

S. 44(3A) inserted by No. 77/2013 s. 10(1), amended by No. 55/2014 s. 32(5)(a).

S. 44(3A)(a)(i) amended by No. 55/2014 s. 32(5)(b).

S. 44(3A)(a)(ii) amended by No. 55/2014 s. 32(5)(c).

S. 44(3A)(b) amended by No. 55/2014 s. 32(5)(d).




187

section 40ZD exclusion order unless the application was made within the period referred to in section 40ZC(2)(b).

(4) If property is forfeited under a forfeiture order or a civil forfeiture order or by automatic forfeiture under section 35 or 36GA or by unexplained wealth forfeiture under section 40ZA, the Minister, or a prescribed person authorised by the Minister for the purposes of this subsection, may, before the property is dealt with under subsection (1), direct that the property be disposed of, or otherwise dealt with, as specified in the direction.

(5) Without limiting subsection (4), the directions that may be given under that subsection include a direction that property is to be disposed of in accordance with the provisions of a law specified in the direction.

(6) If property is forfeited to the Minister under a forfeiture order or a civil forfeiture order or by automatic forfeiture under section 35 or 36GA or by unexplained wealth forfeiture under section 40ZA, the Minister, or a prescribed person authorised by the Minister for the purposes of this subsection, may give all directions that are necessary or convenient to realise the Minister's interest in the property.

(7) For the purposes of this section, the disposal of real property includes the creation of a contractual obligation for the sale of the property.

44A Certificate of disposal

(1) The Minister or a person prescribed for the purposes of section 44(1) may issue a certificate certifying that specified property has been disposed of in accordance with section 44.

(2) A certificate issued under subsection (1)—

S. 44(4) amended by Nos 43/1998 s. 17(3), 55/2014 s. 32(6), 79/2014 s. 20(5).

S. 44(6) amended by Nos 43/1998 s. 36(j)(k), 55/2014 s. 32(6), 79/2014 s. 20(5).

S. 44(7) inserted by No. 77/2013 s. 10(2).




188

(a) is admissible in evidence in proceedings under this Act; and

(b) in the absence of evidence to the contrary, is proof that the property has been disposed of in accordance with section 44.

45 Relief from undue hardship

(1) Subject to subsection (1A), if a court is satisfied that undue hardship may reasonably be likely to be caused to any person by a forfeiture order or a civil forfeiture order made by that court, the court—

(a) may order that the person is entitled to be paid a specified amount out of the forfeited property, being an amount that the court thinks is necessary to prevent undue hardship to the person; and

(b) may make ancillary orders for the purpose of ensuring the proper application of an amount so paid to a person who is under 18 years of age.

(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.

(2) An applicant for an order under subsection (1) must give written notice of the application to the applicant for the forfeiture order or the civil forfeiture order.

45A Relief from automatic forfeiture of property of serious drug offender

S. 45 (Heading) inserted by No. 55/2014 s. 16(1).

S. 45(1) amended by No. 55/2014 s. 16(2).

S. 45(1)(a) amended by No. 55/2014 s. 16(3).





189

(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



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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).


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;

proceeds of sale means the proceeds of the sale of the property after all mortgages and charges to which the property is subject have been discharged.

45B Relief from unexplained wealth forfeiture

(1) If property is forfeited under section 40ZA, a person may apply to the court that made the unrestrained wealth restraining order for relief from the forfeiture of the property.

(2) An application under subsection (1) must be made within 60 days after the property is forfeited to the

S. 45A(7) def. of dependant amended by No. 27/2016 s. 16(a).

S. 45A(7) def. of proceeds of sale inserted by No. 27/2016 s. 16(b).




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Minister.

(3) Subject to subsection (4), the court—

(a) may order that the person is entitled to be paid a specified amount out of the forfeited property, being an amount that the court thinks is necessary to prevent undue hardship to the person caused by the unexplained wealth forfeiture; and

(b) may make ancillary orders for the purpose of ensuring the proper application of an amount so paid to a person who is under 18 years of age.

(4) The court may make an order under subsection (3) if satisfied that—

(a) there are no outstanding applications for a section 40ZD exclusion order in relation to the property; and

(b) undue hardship may reasonably be likely to be caused to the applicant by unexplained wealth forfeiture.

(5) An applicant for an order under subsection (1) must give written notice of the application to the applicant for the unexplained wealth restraining order in relation to which unexplained wealth forfeiture occurred.

46 Discharge of forfeiture order

(1) A forfeiture order is discharged—

(a) if the conviction in reliance on which the order was made is subsequently set aside; or

(b) if—

S. 46(1)(a) amended by No. 68/2009 s. 97(Sch. item 23.35).



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(i) in reliance on the deemed conviction of a person under section 4(1)(d), a forfeiture order has been made in respect of the person; and

(ii) after the making of the order, the person surrenders to a police officer or is found or becomes for any other reason amenable to justice; and

(iii) the person is acquitted, on appeal or otherwise; and

(iv) the person pays to the State any conversion costs notified to the person by the Minister; or

(c) if it is discharged by the court which hears an appeal against it under section 142; or

(d) if a payment is made to discharge it in accordance with section 56 or 57.

(2) If a forfeiture order is discharged in the manner referred to in paragraph (a), (b) or (c) of subsection (1), the person on whose application the forfeiture order was made must, as soon as practicable after the discharge, give written notice of the discharge to all persons whom the first-mentioned person has reason to believe may have had an interest in the property immediately before it was forfeited.

(3) A notice under subsection (2) must include a statement to the effect that a person claiming to have had an interest in the property immediately before it was forfeited may make an application under section 55.

47 Discharge of automatic forfeiture in respect of an interest

S. 46(1)(b)(ii) amended by No. 37/2014 s. 10(Sch. item 25.8).

S. 46(2) amended by No. 43/1998 s. 18(a)(b).



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(1) Automatic forfeiture under section 35 is discharged in respect of an interest in property—

(a) if the conviction in reliance on which the automatic forfeiture occurred is subsequently set aside; or

(b) if an exclusion order in respect of the interest is made, whether on appeal or otherwise; or

(c) if—

(i) in reliance on the deemed conviction of a person under section 4(1)(d), automatic forfeiture has occurred in respect of the person; and

(ii) after the occurrence of automatic forfeiture, the person surrenders to a police officer or is found or becomes for any other reason amenable to justice; and

(iii) the person is acquitted, on appeal or otherwise; and

(iv) the person pays to the State any conversion costs notified to the person by the Minister; or

(d) if a payment is made to discharge it in accordance with section 56 or 57.

(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.


S. 47(1)(c)(ii) amended by No. 37/2014 s. 10(Sch. item 25.8).




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(2) If automatic forfeiture is discharged in the manner referred to in paragraph (a), (b) or (c) of subsection (1) or in subsection (1A), the DPP must—

(a) as soon as practicable after the discharge, give written notice of the discharge to all persons whom the DPP has reason to believe may have had an interest in the property immediately before it was forfeited; and

(b) if required to do so by a court, give written notice of the discharge to a specified person or class of persons in the manner and within the time that the court considers appropriate.

(3) A notice under subsection (2) must include a statement to the effect that a person claiming to have had an interest in the property immediately before it was forfeited may make an application under section 55.

48 Discharge of civil forfeiture order

(1) A civil forfeiture order is discharged if—

(a) it is discharged by the Court of Appeal on hearing an appeal against it under section 142; or

(b) a payment is made to discharge it in accordance with section 56 or 57.

(2) If a civil forfeiture order is discharged in the manner referred to in paragraph (a) of subsection (1), the person on whose application the order was made must, as soon as practicable after the discharge, give written notice of the discharge to any person to whom notice of the application for the civil forfeiture order was given under Part 4.

(3) A notice under subsection (2) must include a statement to the effect that a person claiming to

S. 47(2) amended by No. 55/2014 s. 34(2).



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have had an interest in the property immediately before it was forfeited may make an application under section 55.

48A Discharge of unexplained wealth forfeiture in respect of an interest

(1) Unexplained wealth forfeiture under section 40ZA is discharged in respect of an interest in property—

(a) if a section 40ZD exclusion order in respect of the interest is made, whether on appeal or otherwise; or

(b) if a payment is made to discharge it in accordance with section 56 or 57.

(2) If unexplained wealth forfeiture is discharged in the manner referred to in subsection (1)(a), the applicant for the unexplained wealth restraining order must—

(a) as soon as practicable after the discharge, give written notice of the discharge to all persons whom the applicant has reason to believe may have had an interest in the property immediately before it was forfeited; and

(b) if required to do so by a court, give written notice of the discharge to a specified person or class of persons in the manner and within the time that the court considers appropriate.

(3) A notice under subsection (2) must include a statement to the effect that a person claiming to have an interest in the property immediately before it was forfeited may make an application under section 55.




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Part 6—Exclusion orders49 Application for exclusion from forfeiture order

(1) If property is forfeited, or is sought to be forfeited, to the Minister under a forfeiture order, a person (other than the accused) who claims an interest in the property or claims to have had an interest in the property immediately before it was forfeited may, subject to subsection (2), apply to the court that made the forfeiture order or from which a forfeiture order is sought for an order under section 50.

(2) The application must, subject to subsection (3), be made at the same time as the application for a forfeiture order or, if a forfeiture order has been made, before the end of the period of 60 days commencing on the day on which the forfeiture order was made.

(3) Subject to subsection (3A), the court that made the forfeiture 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.

(3A) The court may not grant a person leave under subsection (3) to make an application in respect of property that has been disposed of in accordance with section 44.

(4) An applicant must give written notice of the application, and of the grounds on which it is made—

(a) to the applicant for the forfeiture order; and

(b) to any other person whom the applicant has reason to believe has an interest in the

S. 49(1) amended by Nos 43/1998 s. 36(l), 68/2009 s. 97(Sch. item 23.37).

S. 49(3) amended by No. 77/2013 s. 12(1).





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property or had an interest in the property immediately before it was forfeited; and


(5) Any person notified under subsection (4) 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 50.

(6) If—

(a) the person referred to in subsection (4)(a) proposes to contest an application for an exclusion order; and

(b) the application is not made at the same time as the application for a forfeiture order—

that person must give the applicant for the exclusion order written notice of the grounds on which the application is to be contested.

50 Determination of exclusion application—forfeiture order

(1) On an application made under section 49—

(a) if the court is not satisfied that the property in which the applicant claims an interest is not tainted property, the court may make an order excluding the applicant's interest in the property from the operation of the forfeiture order if satisfied that—

(i) the applicant was not, in any way, involved in the commission of the Schedule 1 offence; and

S. 49(4)(c) inserted by No. 77/2013 s. 12(3)(b).


S. 50(1)(a)(i) amended by No. 87/2004 s. 22(1)(l).



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(ii) where the applicant acquired the interest before the commission of the Schedule 1 offence, the applicant did not know that the accused would use, or intended to use, the property in, or in connection with, the commission of the Schedule 1 offence; and

(iii) where the applicant acquired the interest at the time of or after the commission of the Schedule 1 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 was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 1 offence or the date that the restraining order was made in relation to the property; and

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

(b) if the court is satisfied that the property is not tainted property, the court may make an order excluding the applicant's interest in the property from the operation of the forfeiture order.


S. 50(1)(a)(ii) amended by Nos 87/2004 s. 22(1)(l), 68/2009 s. 97(Sch. item 23.38).

S. 50(1)(a)(iii) amended by No. 87/2004 s. 22(1)(l).

S. 50(1)(a)(iv) substituted by No. 42/2007 s. 10(2), amended by No. 68/2009 s. 97(Sch. item 23.38).

S. 50(1)(a)(v) amended by No. 68/2009 s. 97(Sch. item 23.38).

S. 50(1)(b) substituted by No. 43/1998 s. 19, amended by No. 42/2007 s. 10(1)(b).



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51 Application for exclusion from automatic forfeiture

(1) If property is forfeited to the Minister under section 35, 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 restraining order for an order under section 52.

(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 (5A), the court that made the relevant 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 52 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 restraining order; or

(b) the making of the relevant restraining order—

except with the leave of the court that made the relevant restraining order.

(5) Subject to subsection (5A), 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 restraining order was not due to neglect on the part of the applicant.

S. 51(1) amended by Nos 43/1998 s. 36(m), 68/2009 s. 97(Sch. item 23.39).

S. 51(2) amended by No. 43/1998 s. 36(m).

S. 51(3) amended by No. 77/2013 s. 13(1).

S. 51(5) amended by Nos 42/2007 s. 18(Sch. item 15), 77/2013 s. 13(1).



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(5A) 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.


(a) to the DPP; and




(8) 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.

52 Determination of exclusion application—automatic forfeiture

(1) On an application made under section 51, the court may make an order excluding the applicant's interest in property from the operation of section 35—

(a) if the court is not satisfied that the property in which the applicant claims an interest is not tainted property or derived property but is satisfied that—



S. 51(6)(c) inserted by No. 77/2013 s. 13(3)(b).

S. 52(1) amended by No. 42/2007 s. 11(1).

S. 52(1)(a) amended by No. 42/2007 s. 11(2).



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(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 of the Schedule 2 offence, the applicant did not know that the accused would use, or intended to use, the property in, or in connection with, the commission of the Schedule 2 offence; and

(iii) where the applicant acquired the interest at the time of or after the 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 or derived property; and

(iv) the applicant's interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the Schedule 2 offence or the date that the restraining order was made in relation to the property; and

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

(b) if the court is satisfied that the property is not tainted property or derived property and that—

(i) the applicant's interest in the property was not subject to the effective control of the accused on the earlier of the date that the accused was charged with the

S. 52(1)(a)(i) amended by No. 87/2004 s. 22(1)(m).

S. 52(1)(a)(ii) amended by Nos 87/2004 s. 22(1)(m), 68/2009 s. 97(Sch. item 23.40).

S. 52(1)(a)(iii) amended by Nos 87/2004 s. 22(1)(m), 42/2007 s. 11(2).

S. 52(1)(a)(iv) substituted by No. 42/2007 s. 11(3), amended by No. 68/2009 s. 97(Sch. item 23.40).

S. 52(1)(a)(v) amended by No. 68/2009 s. 97(Sch. item 23.40).

S. 52(1)(b) amended by No. 42/2007 s. 11(2).

S. 52(1)(b)(i) substituted by No. 42/2007 s. 11(4), amended by No. 68/2009 s. 97(Sch. item 23.40).



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Schedule 2 offence or the date that the restraining order was made in relation to the property; and

(ii) where the applicant acquired the interest from the accused, directly or indirectly, that it was acquired for sufficient consideration.


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


S. 53 amended by Nos 43/1998 s. 36(n), 87/2004 s. 18(1)–(4), 79/2006 s. 11, 42/2007 s. 18(Sch. item 16), repealed by No. 68/2010 s. 51, new s. 53 inserted by No. 55/2014 s. 35.



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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.


(a) to the DPP; and




(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.



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54 Determination 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.


S. 54 amended by Nos 43/1998 s. 20, 87/2004 s. 18(5)(6), 42/2007 s. 12, repealed by No. 68/2010 s. 51, new s. 54 inserted by No. 55/2014 s. 35.



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Part 7—Return of property55 Application to Minister for return of property or

payment of value

(1) If—

(a) a forfeiture order is discharged in the manner referred to in section 46(1)(a), (b) or (c); or

(b) automatic forfeiture is discharged in the manner referred to in section 47(1)(a), (b) or (c) or (1A)(a) or (b); or

(c) a civil forfeiture order is discharged in the manner referred to in section 48(1)(a); or

(d) unexplained wealth forfeiture is discharged in the manner referred to in section 48A(1)(a)—

any person who claims to have had an interest in the property immediately before it was forfeited may apply in writing to the Minister for the transfer of the interest to the person.

(2) If a court makes an exclusion order under section 50(1), 52(1) or 54(1) or a section 40B exclusion order or a section 40ZD exclusion order in respect of an interest in property, the applicant for the exclusion order or the section 40B exclusion order, as the case requires, may apply in writing to the Minister for the transfer of the interest to the person.

(3) On receipt of an application under subsection (1) or (2), the Minister may transfer the interest to the applicant if satisfied that—

(a) the interest was vested in the applicant immediately before the forfeiture; and

(b) the interest is still vested in the Minister; and

S. 55(1)(b) amended by No. 55/2014 s. 36(1).

S. 55(1)(c) amended by No. 79/2014 s. 23(1)(a).

S. 55(1)(d) inserted by No. 79/2014 s. 23(1)(b).

S. 55(2) amended by Nos 68/2010 s. 52(1), 55/2014 s. 36(2), 79/2014 s. 23(2).

S. 55(3)(b) amended by No. 43/1998 s. 36(o).



206

(c) there is no reason why the interest should not be transferred to the applicant.

(4) The transfer of an interest to a person under this section may, if the Minister thinks fit, be conditional on the payment, within 6 months after notice of the condition is given to the applicant, of any amount referred to in section 14(4), 36H(4), 40C(4), 45 or 45A paid to the person in relation to that forfeiture order.

(5) If a person fails to make a payment referred to in subsection (4) within 6 months after receiving notice of the condition, the Minister must not transfer the interest to the person but subsection (6) applies as if the interest were no longer vested in the Minister.

(6) If a person applies under subsection (1) or (2) in respect of an interest in property, which is no longer vested in the Minister and the Minister is satisfied that the interest was vested in the applicant immediately before the forfeiture—

(a) if an order has not been made under section 50(2), 52(2) or 54(2) or under section 40B(2) or 40ZD(4), the Minister may make a declaration of the value (as at the time of making the declaration) of the interest; and

(b) there is payable to the applicant an amount equal to the value determined by the court or declared under paragraph (a) less any amount referred to in section 14(4), 36H(4), 40C(4), 45 or 45A paid to the person in relation to that forfeiture order.

S. 55(4) amended by Nos 87/2004 s. 22(2)(a), 68/2010 s. 52(2), 55/2014 s. 36(3), 79/2014 s. 23(3).

S. 55(5) amended by No. 43/1998 s. 36(o).

S. 55(6) amended by No. 43/1998 s. 36(o).

S. 55(6)(a) amended by Nos 68/2010 s. 52(3)(a), 55/2014 s. 36(4), 79/2014 s. 23(4)(a).

S. 55(6)(b) amended by Nos 87/2004 s. 22(2)(a), 68/2010 s. 52(3)(b), 55/2014 s. 36(3), 79/2014 s. 23(4)(b).



207

(7) An amount payable under subsection (6) must be notified to the person in writing and paid within 6 months after the notice is given.

(8) If the Minister is required by this section to arrange for property to be transferred to a person, the Minister or a prescribed person authorised by the Minister for the purposes of this subsection has power to do, or authorise the doing of, anything necessary or convenient to effect the transfer, including, but not limited to, the execution of any instrument and the making of an application for registration of an interest in the property on any appropriate register.

(9) If the Minister determines under this section not to transfer an interest to an applicant in whom the interest was vested immediately before the forfeiture, there is payable to the applicant—

(a) the amount determined by the court under section 50(2), 52(2) or 54(2) or under section 40B(2) or 40ZD(4); or

(b) if no such determination has been made, an amount equal to the value of the interest as determined by the Minister—

less any amount referred to in section 14(4), 36H(4), 40C(4), 45 or 45A paid to the applicant in relation to that forfeiture order.

(10) A determination or purported determination of the Minister under this section is not liable to be challenged, appealed against, reviewed, quashed or called in question in any court or tribunal on any account.

S. 55(8) amended by No. 43/1998 s. 36(p).

S. 55(9) amended by Nos 87/2004 s. 22(2)(a), 68/2010 s. 52(4)(b), 55/2014 s. 36(3), 79/2014 s. 23(5)(b).

S. 55(9)(a) amended by Nos 68/2010 s. 52(4)(a), 55/2014 s. 36(4), 79/2014 s. 23(5)(a).



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56 Person with interest in forfeited property may buy back interest

(1) If property is forfeited to the Minister under Part 3, Part 4 or Part 4A, any person who claims to have had an interest in the property immediately before it was forfeited may apply in writing to the Minister to buy back the interest.

(2) An applicant must give written notice of the application to any other person whom the applicant has reason to believe had an interest in the property immediately before it was forfeited.

(3) If the Minister is satisfied that—

(a) the interest was vested in the applicant immediately before the forfeiture; and

(b) the interest is still vested in the Minister; and

(c) there is no reason why the interest should not be transferred to the applicant—

the Minister may make a declaration of the value (as at the time of making the declaration) of the interest and notify the applicant accordingly.

(4) If the applicant pays to the Minister the amount so notified within 2 months, the Minister may transfer the interest to the applicant and the forfeiture is discharged to the extent to which it relates to the interest.

(5) If the Minister is permitted by this section to transfer an interest in property to a person, the Minister or a prescribed person authorised by the Minister for the purposes of this subsection has power to do, or authorise the doing of, anything necessary or convenient to effect the transfer, including, but not limited to, the execution of any instrument and the making of an application for

S. 56(1) amended by Nos 43/1998 s. 36(q), 79/2014 s. 24.

S. 56(3)(b) amended by No. 43/1998 s. 36(q).

S. 56(4) amended by No. 43/1998 s. 21(1).

S. 56(5) amended by No. 43/1998 s. 36(r).



209

registration of an interest in the property on any appropriate register.


(7) If an applicant has paid an amount under this section in respect of an interest in property forfeited under Part 3 and in relation to an offence for which the conviction is subsequently set aside, the applicant is entitled to the refund of the amount paid.

57 Buying out other interests in forfeited property

(1) If property is forfeited to the Minister under Part 3, Part 4 or Part 4A, any person who claims to have had an interest in the property immediately before it was forfeited may apply in writing to the Minister to buy out any other interest in the property.

(2) An applicant must give written notice to each other person whom the applicant has reason to believe had an interest in the property immediately before it was forfeited that—

(a) the applicant wishes to purchase that other interest from the Minister; and

(b) the person notified may, within 28 days after receiving the notice, lodge a written objection to the purchase of that interest with the Minister.

(3) If the Minister is satisfied that—

(a) an interest in the property was vested in the applicant immediately before the forfeiture; and

S. 56(7) amended by Nos 43/1998 s. 21(2), 68/2009 s. 97(Sch. item 23.41).

S. 57(1) amended by Nos 43/1998 s. 36(s), 79/2014 s. 24.

S. 57(2)(a) amended by No. 43/1998 s. 36(s).



210

(b) the interest that the applicant wishes to purchase is still vested in the Minister; and

(c) there is no reason why the interest should not be sold to the applicant—

the Minister may make a declaration of the value (as at the time of making the declaration) of the interest and notify the applicant accordingly.

(4) If—

(a) a person notified under subsection (2) does not lodge a written objection to the purchase of the person's interest with the Minister within the period referred to in that subsection; and

(b) within 6 months after being notified of the amount payable under subsection (3) the applicant pays to the Minister the amount so notified—

the Minister must transfer that interest to the applicant and the forfeiture is discharged to the extent to which it relates to the interest.

(5) If the Minister is permitted by this section to transfer an interest in property to a person, the Minister or a prescribed person authorised by the Minister for the purposes of this subsection has power to do, or authorise the doing of, anything necessary or convenient to effect the transfer, including, but not limited to, the execution of any instrument and the making of an application for registration of an interest in the property on any appropriate register.

S. 57(3)(b) amended by No. 43/1998 s. 36(s).

S. 57(5) amended by No. 43/1998 s. 36(t).



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212

Part 8—Pecuniary penalty orders

Division 1—Pecuniary penalty orders following conviction

58 Application for pecuniary penalty order

(1) If an accused is convicted of a Schedule 2 offence—

(a) the DPP may apply to the Supreme Court or the court before which the accused was convicted of the offence; or

(b) where the accused was convicted of the offence before the Magistrates' Court or the Children's Court, an appropriate officer may apply to that court—

for a pecuniary penalty order.

(2) If an accused is convicted of a Schedule 1 offence other than a Schedule 2 offence—

(a) the DPP may apply to a court; or

(b) an appropriate officer may apply to the Magistrates' Court or the Children's Court—

for a pecuniary penalty order.

(3) Except with the leave of the Supreme Court or the court before which the accused was convicted, an application may only be made under subsection (1) or (2) before the end of the relevant period (if any) in relation to the conviction.


(a) the benefit to which the application relates was derived, realised or identified only after the end of the relevant period; or

Pt 8 Div. 1 (Heading) substituted by No. 87/2004 s. 19(a).

S. 58(1) amended by Nos 87/2004 s. 19(b), 68/2009 s. 97(Sch. item 23.42), substituted by No. 27/2016 s. 17.

S. 58(2) amended by Nos 87/2004 s. 19(c), 68/2009 s. 97(Sch. item 23.42(a)).

S. 58(3) amended by No. 68/2009 s. 97(Sch. item 23.42(b)).



213

(b) necessary evidence became available only after the end of the relevant period; or


(5) The applicant must give written notice of the application to the accused.

(6) The court may waive the requirement under subsection (5) to give notice if the court is satisfied that it is fair to do so.

(7) The court may, at any time before the final determination of the application and whether or not the period for making the application has expired, amend the application as it thinks fit, either at the request of the applicant or with the approval of the applicant.

(8) If an application under subsection (1) or (2) has been finally determined, no further application may be made under that subsection in relation to the same conviction, except with the leave of the Supreme Court or the court which dealt with the earlier application.


(a) the benefit to which the new application relates was derived, realised or identified only after the earlier application was determined; or






214

59 Determination of application for pecuniary penalty order

(1) On an application under section 58(1) or (2), the court may—

(a) assess the value of the benefits derived by the accused in relation to the offence; and

(b) order the accused to pay to the State a pecuniary penalty equal to the value as so assessed less, if the court thinks it desirable to take it into account, any amount paid or payable by way of restitution or compensation in relation to the same conviction—

and must do so on an application under section 58(1) if section 68 applies in relation to the Schedule 2 offence.

(2) The accused is entitled to appear and to give evidence at the hearing of an application under section 58(1) or (2) but the absence of the accused does not prevent the court from making a pecuniary penalty order.

(3) If an application is made under section 58(2) to the court before which the accused was convicted of the offence before that court has passed sentence for the offence, that court may make a pecuniary penalty order at the time of passing sentence and for this purpose the court may, if it thinks it necessary to do so, defer the passing of sentence until it has determined the application for the order.

(4) On an application under section 58(1) or (2) a court may, subject to Part 3.10 of the Evidence

S. 59(1) amended by No. 87/2004 s. 19(d).





S. 59(4) amended by No. 69/2009 s. 54(Sch. Pt 1 item 9.2).



215

Act 2008 and any rules of court, take into account in determining the application any material that it thinks fit including—

(a) subject to section 99(2), a statement or disclosure made during an examination ordered under Part 12; and

(b) evidence given in any proceeding relating to the offence in reliance on the conviction of which the application is made—

and, for this purpose, the whole or any part of the transcript of those proceedings is admissible in evidence as if it were a record of evidence given on the hearing of the application.

(5) A court must give priority to an application made under section 84 (restitution order) or Division 2 of Part 4 (compensation order) of the Sentencing Act 1991 in relation to the same conviction and, accordingly, may defer the determination of an application under section 58(1) or (2) until the application under the Sentencing Act 1991 has been determined.

(6) A court may defer the determination of an application under section 58(1) until the final determination of any application for an exclusion order under section 22(a).

60 Consent orders

(1) Subject to section 12, a court may make a pecuniary penalty order under this Division by consent of the applicant and the respondent.

(2) A law enforcement agency or an applicant for a pecuniary penalty order must not enter into an agreement to settle any matter in respect of which a pecuniary penalty order could be made under this Division and which involves the payment of

S. 59(5) amended by No. 54/2000 s. 25(2).

S. 60(2) amended by Nos 43/1998 s. 36(u), 42/2007 s. 18(Sch. item 17).



216

money or the transfer of any interest in property to the State or the Minister except—




(d) with the approval of the Supreme Court or the court before which the accused was convicted of the offence in reliance on which an application for a pecuniary penalty order could be made.

61 Pecuniary penalty order does not prevent forfeiture

The making of a pecuniary penalty order under this Division against an accused in relation to an offence does not prevent—

(a) the making of a forfeiture order; or

(b) automatic forfeiture occurring—

in respect of an interest in property of the accused in relation to the same offence.

62 Discharge of pecuniary penalty order

(1) A pecuniary penalty order under this Division is discharged—

(a) if the conviction in reliance on which the order was made is subsequently set aside; or

(b) if—

(i) in reliance on the deemed conviction of a person under section 4(1)(d), a pecuniary penalty order has been made

S. 60(2)(d) amended by No. 68/2009 s. 97(Sch. item 23.44).

S. 61 amended by No. 68/2009 s. 97(Sch. item 23.45).




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under this Division against the person; and

(ii) after the making of the order, the person surrenders to a police officer or is found or becomes for any other reason amenable to justice; and

(iii) the person is acquitted, on appeal or otherwise; or

(c) if it is discharged by the court which hears an appeal against it under section 142; or

(d) if the pecuniary penalty is paid.

(1A) Property forfeited to the Minister under this Act must not be taken into account in determining whether a pecuniary penalty order is discharged.

(2) If a pecuniary penalty order is registered under the Service and Execution of Process Act 1992 of the Commonwealth, notice of the discharge of that order must be given as prescribed by the rules of the Supreme Court.

* * * * *



S. 62(2) amended by No. 43/1998 s. 39(c).

Pt 8 Div. 2 (Heading and ss 63–66) amended by Nos 43/1998 ss 22, 23, 36(v), 39(d), 54/2000 s. 25(2), 87/2004 s. 19(e)–(i), 42/2007 s. 18(Sch. item 18), 68/2009 s. 97(Sch. item 23.47–23.52), 69/2009 s. 54(Sch. Pt 1 item 9.3), repealed by No. 68/2010 s. 53.



218

Division 3—General67 Assessment of benefits

(1) For the purposes of this Part, the value of the benefits derived by an accused in relation to an offence may include—

(aa) any money actually received as a result of the commission of the offence, regardless of expenditures incurred in deriving that money;

(a) any property that was derived or realised, directly or indirectly, by the accused or another person, at the request or by the direction of the accused, as the result of the commission of the offence;

(b) any benefit, service or financial advantage provided for the accused or another person, at the request or by the direction of the accused, as the result of the commission of the offence;

(c) any increase in the total value of property in which the accused has an interest in the period beginning immediately before the commission of the offence and ending at some time after the commission of the offence that the court is not satisfied was due to causes unrelated to the commission of the offence;

(d) subject to subsection (3), any profits derived by the accused, or by another person on behalf of the accused or at the request or by the direction of the accused, from a depiction of the offence or an expression of the

S. 67(1) amended by Nos 43/1998 s. 36(w), 68/2009 s. 97(Sch. item 23.53(a)).

S. 67(1)(aa) inserted by No. 43/1998 s. 24.



S. 67(1)(c) amended by No. 68/2009 s. 97(Sch. item 23.53(b)).

S. 67(1)(d) amended by No. 68/2009 s. 97(Sch. item 23.53(b)–(d)).



219

thoughts, opinions or emotions of the accused regarding the offence in—

(i) a film, slide, video tape, video disc or any other form of recording from which a visual image can be produced; or

(ii) a record, tape, compact disc or any other form of recording from which words or sounds can be produced; or

(iii) a book, newspaper, magazine or other written or pictorial matter; or

(iv) a radio or television production; or

(v) a live entertainment of any kind;

(e) any other thing that the court thinks fit to treat as benefits—

but must not include any property forfeited to the Minister under this Act.

(2) For the purposes of subsection (1)(c), if an offence is committed between 2 dates, the period begins immediately before the earlier of the 2 dates and ends at some time after the later of the 2 dates.

(3) In considering whether to treat profits of a kind referred to in subsection (1)(d) as benefits derived in relation to the offence, the court may have regard to any matters that it thinks fit including—

(a) whether it is not in the public interest to treat them as benefits; and

(b) whether the depiction or expression has any general social or educational value; and

(c) the nature and purposes of the publication, production or entertainment including its use for research, educational or rehabilitation purposes.

Note




220


68 Assessment of benefits in relation to Schedule 2 offences

(1) A prescribed person or a person belonging to a prescribed class of persons may apply to the Supreme Court for the application of this section in relation to a Schedule 2 offence.

(2) The DPP may apply to the Supreme Court or the County Court for the application of this section in relation to a Schedule 2 offence.

(3) In assessing the value of the benefits derived by an accused in relation to an offence, the court must, on application under subsection (1) or (2), subject to subsection (4), treat as benefits—

(a) all property in which the accused had an interest at the time the first application is made under this Act in respect of the offence; and

(b) all expenditure of the accused within the period of 6 years immediately before the time the first application is made under this Act in respect of the offence—

regardless of whether any benefits were actually derived and whether they were derived in relation to an offence, but must not include any property which has been forfeited to the Minister under this Act.

(4) On an application under subsection (1) or (2), the Supreme Court or the County Court may refuse to treat as benefits specified property or expenditure if the Court is satisfied by the accused that—

(a) in the case of property—

S. 68(1) amended by No. 87/2004 s. 19(j)(i)(ii).

S. 68(2) amended by No. 87/2004 s. 19(k).

S. 68(3) amended by Nos 43/1998 s. 36(x), 68/2009 s. 97(Sch. item 23.54(a)).






221

(i) the property—

(A) was lawfully acquired by the accused; and

(B) is not derived property; and

(C) is not tainted property; or

(ii) an interstate forfeiture order already applies to the property; or

(iii) a forfeiture order, an interstate forfeiture order, a pecuniary penalty order or an interstate pecuniary penalty order under the Crimes (Confiscation of Profits) Act 1986 already applies to the property; or

(b) in the case of expenditure—

(i) the funds which were expended were lawfully acquired and were not derived or realised, directly or indirectly, by any person from any unlawful activity; or

(ii) the expenditure was made to satisfy a pecuniary penalty order or an interstate pecuniary penalty order under this Act or the Crimes (Confiscation of Profits) Act 1986.

Note


S. 68(4) (a)(i)(A) amended by No. 68/2009 s. 97(Sch. item 23.54(b)).

S. 68(4)(a)(i)(B) substituted by No. 42/2007 s. 13.

S. 68(4)(a)(i)(C) inserted by No. 42/2007 s. 13.




222

69 Variation of pecuniary penalty order after successful appeal against restitution or compensation order

(1) If—

(a) a court made a pecuniary penalty order under this Part in relation to an offence; and

(b) in assessing the value of the benefits derived, the court took into account the making of a restitution or compensation order under the Sentencing Act 1991 against the accused in relation to the offence; and

(c) an appeal against the restitution or compensation order is allowed—

the DPP or the accused may apply to the court which made the pecuniary penalty order for a variation of that order, taking into account the successful appeal.

(2) An applicant under subsection (1) must give written notice of the application to the DPP or the accused, as the case may be.

(3) On an application under subsection (1) the court may, if it considers it appropriate to do so, vary the pecuniary penalty order.

69A Variation of pecuniary penalty order after subsequent forfeiture

(1) If—

(a) a court made a pecuniary penalty order under this Part in relation to an offence; and

S. 69 (Heading) inserted by No. 68/2010 s. 21.







223

(b) in assessing the value of the benefits derived, the court included or treated as benefits any property that is later forfeited to the Minister under this Act in relation to the same offence—

the DPP or the accused may apply to the court which made the pecuniary penalty order for a variation of that order, taking into account the later forfeiture.

(2) An applicant under subsection (1) must give written notice of the application to the DPP or the accused, as the case may be.

(3) On an application under subsection (1), the court must exclude the forfeited property from the assessment of benefits and vary the pecuniary penalty order accordingly.

70 Declaration that property available to satisfy order

(1) On application by the DPP, a prescribed person or a person belonging to a prescribed class of persons or an appropriate officer, a court may, if in its opinion particular property in respect of which a restraining order has been made—

(a) was subject to the effective control of the accused on the earlier of the date that the accused was charged with the offence for which the accused was convicted or the date when the restraining order was made; or

(b) was the subject of a gift from the accused to another person—

make an order declaring that the whole, or a specified part, of that property is available to satisfy a pecuniary penalty order.

S. 70(1)(a) substituted by No. 42/2007 s. 14, amended by No. 68/2009 s. 97(Sch. item 23.56).




224

(2) If a court declares that property is available to satisfy a pecuniary penalty order, the order may be enforced as if the property were property of the accused.

(3) An applicant under subsection (1) must give written notice of the application—

(a) to the person against whom the order is sought; and

(b) to the accused; and

(c) to any other person to whom the court directs that notice be given; and

(d) to any other person whom the applicant has reason to believe has an interest in the property.

(4) Any person notified under subsection (3) and any other person who claims an interest in the property are entitled to appear and to give evidence at the hearing of the application but the absence of a person does not prevent the court from making an order under this section.

71 Court may give directions

A court has power to give all directions that are necessary to give effect to a pecuniary penalty order made by it and may, if it is satisfied on reasonable grounds that any directions have not been, or would not be, complied with, make an order directing a person specified in the order to take control of property on which there is a charge created by section 72(1) or (2).

72 Charge on property subject to restraining order or declaration

(1) If—



S. 72(1) amended by No. 43/1998 s. 25(c).



225

(a) a court makes a restraining order in respect of all or some of the property of a person; and

(b) a court, whether before or after the making of the restraining order, makes a pecuniary penalty order against that person—

then there is created, on the making of the pecuniary penalty order or the restraining order, whichever is the later, a charge on all the property of that person to which the restraining order applies to secure the payment to the State of the pecuniary penalty.

(2) If a court makes a declaration under section 70(1), then there is created, on the making of the declaration, a charge on all the property to which the declaration applies to secure the payment to the State of the pecuniary penalty.

(3) A charge created by subsection (1) or (2) on property ceases to have effect if any of the following occurs—

(a) the pecuniary penalty order is discharged;

(b) the property is disposed of under section 75;

(c) the property is disposed of with the consent of the court that made the pecuniary penalty order or, if a trustee has been directed to take control of the property, with the consent of the trustee;

(d) the property is sold to a purchaser in good faith for value who, at the time of the purchase, had no notice of the charge.

(4) A charge created by subsection (1) or (2) on property—

S. 72(1)(a) amended by No. 43/1998 s. 25(a).

S. 72(1)(b) amended by No. 43/1998 s. 25(b).

S. 72(3) amended by No. 68/2010 s. 33.



226

(a) except as provided by section 42(1), is subject to every encumbrance to which the property was subject immediately before the pecuniary penalty order or declaration (as the case may be) was made but has priority over all other encumbrances; and

(b) subject to subsection (3), remains on the property despite any disposal of the property.

(5) If—

(a) a charge is created by subsection (1) or (2) on property of a particular kind; and

(b) any law of Victoria provides for the registration of charges on property of that kind—

the applicant for the pecuniary penalty order or declaration may cause the charge so created to be registered under that law.

(6) If the charge is registered under subsection (5), a person who purchases the property after the registration of the charge is, for the purposes of subsection (3)(d), to be taken to have had notice of the charge.

(7) If—

(a) a declaration under section 70(1) applies to property of a particular kind; and


the relevant registration authority under that law must, on application to it by the applicant for the declaration, record on the register the prescribed particulars of the declaration.



227

(8) Without limiting subsection (7), if a declaration relates to land under the operation of the Transfer of Land Act 1958, a caveat may be lodged under section 89 of that Act by any person mentioned in that section in relation to that order.

(9) For the purposes of subsection (8) and without limiting that subsection—

(a) the applicant for the declaration; or

(b) if under section 71 a court directed a person to take control of the property, that person—

is deemed to be a person mentioned in section 89 of the Transfer of Land Act 1958.

73 Disposal of property obtained to satisfy pecuniary penalty order

(1) If property that is not money is obtained by the Minister under a pecuniary penalty order then, subject to subsection (2) and to any direction under subsection (4), the Minister or a prescribed person authorised by the Minister for the purposes of this subsection must, as soon as practicable after the property vests in the Minister, sell or otherwise dispose of the property.

(2) Except with the leave of the court which made the pecuniary penalty order, the Minister must not—

(a) dispose of, or otherwise deal with, the property; or

(b) authorise any other person or body to dispose of, or otherwise deal with, the property—

before the end of the appeal period.

(3) For the purposes of subsection (2), the appeal period ends when an appeal may no longer be lodged against either the pecuniary penalty order or the conviction in reliance on which the order

S. 73(1) amended by No. 43/1998 s. 36(y).

S. 73(2) amended by No. 43/1998 s. 36(y).



228

was made or, if such an appeal is lodged, when the appeal is abandoned or finally determined.

(4) If property is obtained under a pecuniary penalty order, the Minister, or a prescribed person authorised by the Minister for the purposes of this subsection, may, before the property is dealt with under subsection (1), direct that the property be disposed of, or otherwise dealt with, as specified in the direction.

(5) Without limiting subsection (4), the directions that may be given under that subsection include a direction that property is to be disposed of in accordance with the provisions of a law specified in the direction.

(6) If property is obtained by the Minister under a pecuniary penalty order, the Minister, or a prescribed person authorised by the Minister for the purposes of this subsection, may give all directions that are necessary or convenient to realise the Minister's interest in the property.

74 Pecuniary penalty order debt due to Crown

(1) An amount payable by a person to the State under a pecuniary penalty order is, for all purposes, to be taken to be a civil debt due by the person to the Crown.

(2) A pecuniary penalty order made by a court must be taken to be a judgment debt and may be enforced as if it were an order made by it in civil proceedings instituted by the Crown against the accused to recover a debt due by the accused to the Crown.

S. 73(4) amended by No. 43/1998 s. 39(e).

S. 73(6) amended by No. 43/1998 s. 36(y)(z).

S. 74(2) amended by Nos 68/2009 s. 97(Sch. item 23.57), 68/2010 s. 23.



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Part 9—Powers of trustee75 Liability under forfeiture or pecuniary penalty

order to be satisfied by trustee

(1) Any money realised by the trustee out of the disposal of, or otherwise in connection with, property which the trustee was directed to take control of by a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order must be applied by the trustee towards the following in the order in which they are set out—

(a) any fees, commissions and disbursements payable to the trustee under section 76(1);

(b) any conversion costs incurred by the trustee in connection with that property—

and the trustee must pay any money left over to the Minister for payment into the Consolidated Fund.

(2) If the trustee pays any money in satisfaction of the liability of a person under a forfeiture order, civil forfeiture order or pecuniary penalty order or under automatic forfeiture under section 35 or 36GA or unexplained wealth forfeiture, the liability of that person under the order or the automatic forfeiture or the unexplained wealth forfeiture is, to the extent of the payment, discharged.

(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.



S. 75(3) inserted by No. 55/2014 s. 58.



230

76 Provisions concerning the trustee

(1) A trustee is entitled to receive such fees, commissions and disbursements as may be approved by the Minister, or a prescribed person authorised by the Minister for the purposes of this subsection, on an application under this subsection in respect of the exercise of powers or the performance of duties in relation to property of which the trustee has taken control under a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order.

(2) If a trustee is directed by a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order to take control of property, the trustee may do anything that is reasonably necessary for the purpose of preserving the property including, but not limited to—

(a) becoming a party to any civil proceedings affecting the property;

(b) making sure that the property is insured;

(c) if the property consists, wholly or partly, of securities or investments—realising or otherwise dealing with the securities or investments;

(d) if the property consists, wholly or partly, of a business—

(i) employing, or terminating the employment of, persons in the business;

(ii) doing any other thing that is necessary or convenient for carrying on the business on a sound commercial basis;

S. 76(1) amended by Nos 68/2010 s. 55(a), 79/2014 s. 26(a).




231

(e) if the property consists, wholly or partly, of shares in a company—exercising (to the exclusion of the registered holder) the rights attaching to the shares as if the trustee were the registered holder.

(3) A person must not hinder or obstruct the trustee in the exercise of powers or the performance of duties by the trustee in relation to property of which the trustee has taken control under a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order.

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

(4) A certificate under the hand or seal of a trustee—

(a) certifying that a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order has been made directing the trustee to take control of property and that the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order is in force; and

(b) stating the terms of the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order—

is for all purposes evidence and, until the contrary is proved, conclusive evidence of the facts so certified and stated.


S. 76(4)(a) amended by Nos 68/2010 s. 55(a)(b), 79/2014 s. 26.

S. 76(4)(b) amended by Nos 68/2010 s. 55(b), 79/2014 s. 26(b).



232

(5) A trustee is only personally liable for any rates, land tax or municipal or other statutory charges which—

(a) are imposed by or under a law of Victoria on or in respect of property of which the trustee has taken control under a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order; and

(b) fall due on or after the date of the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order—

to the extent of the rents and profits received by the trustee in respect of that property on or after that date.

(6) If a trustee, having taken control under a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order of a business carried on by a person, carries on that business, the trustee is not personally liable for—

(a) any payment in respect of long service leave for which that person was liable; or

(b) any payment in respect of long service leave to which a person employed by the trustee to manage the business, or the legal personal representative of such a person, becomes entitled after the date of the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order.

(7) With the permission of the Minister, or a prescribed person authorised by the Minister for

S. 76(5)(a) amended by Nos 68/2010 s. 55(a), 79/2014 s. 26(a).







233

the purposes of this subsection, a trustee may appoint a person as agent to exercise all or any of the powers or perform all or any of the duties conferred or imposed on the trustee by this Act in relation to property of which the trustee has taken control under a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order.

(8) If a court, when making a restraining order or a civil forfeiture restraining order or an unexplained wealth 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.

S. 76(8) inserted by Nos 55/2014 s. 59, 79/2014 s. 26(a).



234

Part 10—Disposal orders77 Application for disposal order

(1) If a person has been convicted of a Schedule 1 offence, the DPP or an appropriate officer may, without notice, subject to subsection (2), apply to the Magistrates' Court or the court before which the person was convicted of the offence for a disposal order in respect of—

(a) a drug of dependence, a psychoactive substance or a poison or controlled substance within the meaning of the Drugs, Poisons and Controlled Substances Act 1981; or

(b) an instrument, device or substance that is or has been used or is capable of being used for or in—

(i) the cultivation, manufacture, sale or use or in the preparation for cultivation, manufacture, sale or use of a drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981; or

(ii) the production, sale, commercial supply or preparation for sale or commercial supply of a psychoactive substance within the meaning of the Drugs, Poisons and Controlled Substances Act 1981; or

(c) an explosive substance within the meaning of Division 8 of Part I of the Crimes Act 1958; or

(ca) child abuse material as defined in section 51A of the Crimes Act 1958; or

S. 77 amended by No. 87/2004 s. 22(2)(b).


S. 77(1)(b) substituted by No. 40/2017 s. 24(1)(b).

S. 77(1)(ca) inserted by No. 27/2016 s. 18, substituted by No. 47/2016 s. 35(3).



235

(cb) electronic material as defined in section 51A of the Crimes Act 1958 that contains child abuse material as defined in that section; orNote

A disposal order in respect of child abuse material results in the destruction or disposal of the child abuse material. A disposal order in respect of electronic material that contains child abuse material results in the destruction or disposal of the electronic material.

(d) any property that is prescribed by the regulations for the purposes of this subsection; or

(e) any other property that—

(i) is of negligible value; or

(ii) is not fit for the use for which it is intended and cannot be readily made fit for that use—

that was used, or was intended to be used, in, or in connection with, the commission of the offence or was derived or realised, directly or indirectly, by that person or another person, from the commission of the offence.

(2) An application may only be made under subsection (1) before the end of the relevant period (if any) in relation to the conviction.

(3) In this section, commercial supply has the same meaning as it has in Part VI of the Drugs, Poisons and Controlled Substances Act 1981.

78 Disposal orders

(1) Subject to subsection (1A), if an application is made to a court under section 77(1) for an order in respect of particular property, the court may, if it considers it appropriate, order that the property be forfeited to the State and destroyed or disposed of

S. 77(1)(cb) inserted by No. 47/2016 s. 35(3).

S. 77(1)(d) amended by No. 63/2003 s. 16(a).

S. 77(1)(e) inserted by No. 63/2003 s. 16(b).

S. 77(3) inserted by No. 40/2017 s. 24(2).

S. 78(1) amended by No. 63/2003 s. 17(1).



236

in such manner as is provided in the order if it is satisfied that the property is property described in that section.

(1A) If an application under section 77(1) is made in respect of property of the kind described in paragraph (e) of that section, the court must be satisfied as to the following matters before making a disposal order under subsection (1)—

(a) that the property—

(i) is of negligible value; or

(ii) is not fit for the use for which it is intended and cannot be readily made fit for that use; and

(b) if there is any other person who has an interest in the property to which the application relates, that the person is not likely to have any objections to the disposal of the property; and

(c) that there is no other reason not to dispose of the property.

Example

It may be a reason not to dispose of the property if the property is of sentimental value to a person.

(2) A court has power to give all directions that are necessary to give effect to a disposal order made by it.

(3) A disposal order made in reliance on a person's conviction of a Schedule 1 offence—

(a) is stayed pending the expiry of the appeal period in relation to the conviction; and

(b) ceases to have effect if on appeal the conviction is set aside.


S. 78(3) inserted by No. 79/2006 s. 12.




237

Part 10A—Property management

78A Memorandum of understanding

(1) The Secretary and a law enforcement agency may enter into a memorandum of understanding that provides for the transfer from the law enforcement agency to the Secretary of responsibilities and powers under this Act in relation to the management of property—

(a) seized under this Act; or

(b) in respect of which a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order has been made; or

(c) seized under a warrant under—

(i) section 465 of the Crimes Act 1958; or

(ii) section 81 of the Drugs, Poisons and Controlled Substances Act 1981.

(2) A memorandum of understanding may—

(a) refer to—

(i) specified property; or

(ii) a specified class of property; or

(iii) a specified person who has an interest in property or against whom an order or declaration is made under this Act; and

(b) contain such terms as are agreed to by the Secretary and the law enforcement agency.

Pt 10A (Heading and ss 78A, 78B) inserted by No. 63/2003 s. 18.


S. 78A(1)(b) amended by Nos 68/2010 s. 56, 79/2014 s. 27.



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78B Certificate of responsibility and power

(1) The Secretary may issue a certificate that states that the Secretary has responsibility for, and power in relation to, specified property by virtue of a specified memorandum of understanding entered into under section 78A.

(2) A certificate purporting to be signed by the Secretary and issued under this section—

(a) is admissible in evidence in any proceedings; and

(b) in the absence of evidence to the contrary, is conclusive evidence of the matters stated in it.

(3) A certificate under this section must be in the prescribed form.




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Part 11—Search warrants79 Search warrants

(1) A police officer may apply to a magistrate or to a judge of the Supreme Court or County Court for a search warrant to be issued under this Part in respect of any premises.

(2) A magistrate or judge to whom an application is made under subsection (1) may, if satisfied that there are reasonable grounds for believing that there is, or may be within the next 72 hours, any tainted property or any property forfeited under this Act in or on the premises, issue a search warrant authorising any police officer to break and enter the premises and do either or both of the following—

(a) search the premises for the tainted property or the forfeited property;

(b) search any person found in or on the premises in accordance with section 94.

(3) A warrant may be issued under this Part in reliance on the commission of a Schedule 1 offence even if no person has been charged with that offence if the magistrate or judge is satisfied that it is likely that a person will be so charged within 48 hours.

(4) There must be stated in a warrant—

(a) the purpose for which the warrant is issued; and

(b) the nature of the offence in reliance on which the warrant is issued; and

(c) a description of the kind of property authorised to be seized.



S. 79(3) amended by No. 87/2004 s. 22(2)(c).



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(5) Every warrant issued under subsection (2) must be in the prescribed form.

(6) Nothing in this Part limits any of the provisions of any other Act relating to search warrants.

79A Seizure warrants—public places

(1) A police officer may apply to a magistrate or to a judge of the Supreme Court or County Court for a seizure warrant to be issued under this Part in respect of—

(a) tainted property which is at a public place; or

(b) property forfeited under this Act which is at a public place.

(2) A magistrate or judge to whom an application is made under subsection (1), if satisfied that there are reasonable grounds for believing that there is, or may be within the next 72 hours, any tainted property at a public place or any property forfeited under this Act at a public place, may issue a seizure warrant authorising any police officer to seize—

(a) the tainted property specified in the warrant from a public place; or

(b) the forfeited property specified in the warrant from a public place.

(3) A seizure warrant may be issued under this Part in reliance on the commission of a Schedule 1 offence even if no person has been charged with that offence if the magistrate or judge is satisfied that it is likely that a person will be so charged within 48 hours.




S. 79A(3) amended by No. 87/2004 s. 22(2)(d).



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(4) There must be stated in a seizure warrant—



(c) a description of the property authorised to be seized.

(5) Nothing in a seizure warrant authorises—

(a) the seizure of property other than the property specified in the warrant; or

(b) the arrest of a person; or

(c) the entry of any premises to seize property.

(6) Every seizure warrant issued under subsection (2) must be in the prescribed form.

80 Application for warrant

(1) An application for a search warrant or a seizure warrant must be made in writing.

(2) A magistrate or judge must not issue a search warrant or a seizure warrant unless—

(a) the application for the warrant sets out the grounds on which the warrant is being sought; and

(b) the applicant has given the magistrate or judge, either orally or in writing, any further information that he or she requires concerning the grounds on which the warrant is being sought; and

(c) the information given by the applicant is verified before the magistrate or judge on oath or affirmation or by affidavit.

S. 80(1) amended by No. 63/2003 s. 20(1).

S. 80(2) amended by No. 63/2003 s. 20(1).



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(3) A magistrate or judge may administer an oath or affirmation or take an affidavit for the purposes of an application for a search warrant or a seizure warrant.

81 Warrant may be granted by telephone

(1) If, by reason of circumstances of urgency, a police officer considers it necessary to do so, the police officer may apply for a search warrant under section 79 or a seizure warrant under section 79A to a magistrate or judge, by telephone, in accordance with this section.

(2) Before making the application, the police officer must prepare an affidavit setting out the grounds on which the warrant is sought, but may, if necessary, make the application before the affidavit has been sworn.

(3) If transmission by facsimile machine is available, the police officer must transmit a copy of the affidavit, whether sworn or unsworn, to the magistrate or judge who is to hear the application by telephone.

(4) If—

(a) after having considered the terms of the affidavit; and

(b) after having received any further information that the magistrate or judge requires concerning the grounds on which the warrant is being sought—

the magistrate or judge is satisfied as required by section 79(2) or section 79A(2) (as the case requires), he or she may issue a search warrant.

S. 80(3) amended by No. 63/2003 s. 20(1).


S. 81(1) amended by Nos 63/2003 s. 20(3)(a), 37/2014 s. 10(Sch. item 25.9(a)).



S. 81(4) amended by No. 63/2003 s. 20(3)(b).



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(5) If a magistrate or judge issues a search warrant or a seizure warrant on an application made by telephone, he or she must—

(a) inform the applicant of the terms of the warrant and the date on which and the time at which it was issued, and record on the warrant the reasons for issuing the warrant; and

(b) if transmission by facsimile machine is available, transmit a copy of the warrant to the applicant.

(6) If a copy of the search warrant or the seizure warrant has not been transmitted by facsimile machine, the applicant must—

(a) complete a form of search warrant or a seizure warrant (as the case requires) in the terms furnished to the applicant by the magistrate or judge and must write on it the name of the magistrate or judge and the date on which and the time at which the warrant was issued; and

(b) not later than the day following the date of the execution of the search warrant or the seizure warrant (as the case requires) or the expiry of the warrant, whichever is earlier, send the form of warrant completed by the applicant to the magistrate or judge who issued the warrant.

(7) If an application is made by telephone, whether or not a search warrant or a seizure warrant is issued, the applicant must, not later than the day following the making of the application, send the original affidavit duly sworn to the magistrate or judge who heard the application.

S. 81(5) amended by No. 63/2003 s. 20(3)(c).

S. 81(6) amended by No. 63/2003 s. 20(3)(d)(i).

S. 81(6)(a) amended by No. 63/2003 s. 20(3)(d)(ii).

S. 81(6)(b) amended by No. 63/2003 s. 20(3)(d)(iii).

S. 81(7) amended by No. 63/2003 s. 20(3)(e).



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(8) In any proceeding, if it is material for a court to be satisfied that an entry, search or seizure was authorised in accordance with this section, and the warrant signed by a magistrate or judge in accordance with this section authorising the entry, search or seizure is not produced in evidence, the court must assume, unless the contrary is proved, that the entry, search or seizure was not authorised by such a warrant.

82 Record of proceedings for warrant

(1) A magistrate or judge who issues a search warrant or a seizure warrant must cause a record to be made of all relevant particulars of the grounds he or she has relied on to justify the issue of the warrant.

(2) The magistrate or judge may decline to record any matter that might disclose the identity of a person if the magistrate or judge believes on reasonable grounds that to do so might jeopardise the safety of any person.

83 Notice to occupier of premises entered under search warrant

(1) A magistrate or judge must prepare and give an occupier's notice to the person to whom the magistrate or judge issues a search warrant.

(2) An occupier's notice—

(a) must specify—

(i) the name of the person who applied for the warrant; and

(ii) the name of the magistrate or judge who issued the warrant; and

(iii) the date and the time when the warrant was issued; and

S. 82(1) amended by No. 63/2003 s. 20(4).



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(iv) the address or other description of the premises which are the subject of the warrant; and

(b) must contain a summary of the nature of the warrant and the powers conferred by the warrant.

(3) A police officer executing a search warrant must—

(a) on entry into or onto the premises or as soon as practicable thereafter, serve the occupier's notice on a person who appears to be an occupier of, or to be in charge of, the premises and to be aged 18 or more; or

(b) if no such person is then present in or on the premises, serve the occupier's notice on the occupier of, or person in charge of, the premises, either personally or in such other manner as the magistrate or judge who issued the warrant may direct, as soon as practicable after executing the warrant.

(4) Service of an occupier's notice under subsection (3)(b) may be postponed by the magistrate or judge who issued the search warrant if he or she is satisfied that there are reasonable grounds for the postponement.

(5) Service of an occupier's notice under subsection (3)(b) may be postponed on more than one occasion, but must not be postponed on any one occasion for a period exceeding 6 months.

84 Duty to show search warrant





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A police officer executing a search warrant must produce the warrant for inspection by an occupier of, or a person who is in charge of, the premises if requested to do so.

84A Duty to show seizure warrant

A police officer executing a seizure warrant must produce the warrant for inspection by any person present during the execution of the seizure warrant, if that person—

(a) has an interest in the property being seized; or

(b) is in charge of the property being seized.

85 Use of force

A person authorised to search premises under a search warrant may, if it is reasonably necessary to do so, break open any receptacle in or on the premises for the purposes of that search.

86 Use of assistants to execute warrant

A police officer may execute a search warrant or a seizure warrant with the aid of any assistants that the police officer considers necessary.

87 Application of Magistrates' Court Act 1989

Except to the extent that a contrary intention appears in this Part, the rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to warrants under this Part.

88 Expiry of warrant

S. 84 amended by No. 37/2014 s. 10(Sch. item 25.10).

S. 84A inserted by No. 63/2003 s. 21, amended by No. 37/2014 s. 10(Sch. item 25.10).

S. 86 amended by Nos 63/2003 s. 22(1), 37/2014 s. 10(Sch. item 25.11).

S. 88 amended by No. 63/2003 s. 22(2).



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A search warrant or a seizure warrant ceases to have effect—

(a) at the end of the period of 1 month after its issue; or

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

(c) when it is executed—


88A Notice of execution of seizure warrant

(1) The applicant for a seizure warrant must give notice of the execution of that warrant to all persons known to have an interest in the property seized under the warrant.

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

(a) given as soon as practicable, but not more than 7 days after the execution of the seizure warrant; and

(b) in the prescribed form.

89 Report on execution of warrant etc.

(1) The person to whom a search warrant or a seizure warrant is issued must give a report in writing to the magistrate or judge who issued the warrant—

(a) stating whether or not the warrant was executed; and

(b) if the warrant was executed—setting out briefly the result of the execution of the warrant (including a brief description of anything seized); and

(c) if the warrant was not executed—setting out briefly the reasons why the warrant was not executed; and


S. 89(1) amended by No. 63/2003 s. 24(1).



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(d) in the case of a search warrant, stating whether or not an occupier's notice has been served in connection with the execution of the warrant; and

(da) in the case of a seizure warrant, stating whether or not a notice of the execution of a seizure warrant has been given in accordance with section 88A; and

(e) stating whether or not an embargo notice has been issued under section 93 in connection with the execution of the search warrant and describing briefly the property subject to the notice.

(2) A report must be made within 10 days after the expiry of the warrant.

(3) A person may apply to the magistrate or judge to whom a report has been given under subsection (1) for an order authorising the person to inspect the report if the person satisfies the magistrate or judge that he or she is—

(a) the owner or occupier of premises upon which the warrant was executed; or

(b) a person who has an interest in property seized in the execution of the warrant; or

(c) a person who has an interest in property subject to an embargo notice issued under section 93 in connection with the execution of the warrant.

90 Absence etc. of magistrate or judge who issued warrant

If the magistrate or judge who issued a search warrant or a seizure warrant has ceased to hold office or is absent—

(a) a report required to be given to him or her under section 89; or

S. 89(1)(d) amended by No. 63/2003 s. 24(2).

S. 89(1)(da) inserted by No. 63/2003 s. 24(3).

S. 89(1)(e) amended by No. 63/2003 s. 24(4).

S. 90 amended by No. 63/2003 s. 24(5)(a).



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(b) in the case of a search warrant, a power exercisable by him or her under section 83(3)(b) or (4)—

must be given to, or may be exercised by, as the case requires, any other magistrate or judge.

91 Defects in warrants

A search warrant or a seizure warrant is not invalidated by any defect, other than a defect which affects the substance of the warrant in a material particular.

92 Seizure of property under search warrant

(1) A police officer executing a search warrant may seize property of the kind described in the warrant.

(2) A police officer executing a search warrant may also seize property which is not of the kind described in the warrant if—

(a) the police officer believes on reasonable grounds that the property—

(i) is of a kind which could have been included in a search warrant issued under this Part; or

(ii) will afford evidence about the commission of another Schedule 1 offence; and

(b) the police officer believes on reasonable grounds that it is necessary to seize that property in order to prevent its concealment, loss or destruction or its use in committing or continuing a Schedule 1 offence.

S. 90(b) amended by No. 63/2003 s. 24(5)(b).

S. 91 amended by No. 63/2003 s. 24(6).

S. 92(1) amended by No. 37/2014 s. 10(Sch. item 25.12(a)).

S. 92(2) amended by No. 37/2014 s. 10(Sch. item 25.12(b)(i)).

S. 92(2)(a) amended by No. 37/2014 s. 10(Sch. item 25.12(b)(i)).

S. 92(2)(a)(ii) amended by No. 87/2004 s. 22(2)(e).

S. 92(2)(b) amended by Nos 87/2004 s. 22(2)(e), 37/2014 s. 10(Sch. item 25.12(b)(ii)).



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(3) The power conferred by this section to seize property includes power—

(a) to remove the property from the premises where it is found; and

(b) to guard the property in or on those premises; and

(c) to make copies of the whole or any part of the property; and

(d) to issue an embargo notice under section 93 in respect of the property.

93 Embargo notice

(1) In this section, property does not include real property.

(2) A police officer executing a search warrant who is authorised by that warrant or section 92 to seize property may, if the property cannot, or cannot readily, be physically seized and removed, issue an embargo notice in the prescribed form—

(a) by causing a copy of the notice to be served on the person in possession of the property; or

(b) if that person cannot be located after all reasonable steps have been taken to do so, by affixing the copy to the property in a prominent position.

(3) A person who knows that an embargo notice relates to property and who—

(a) sells; or

(b) leases; or


S. 93(3) amended by No. 43/1998 s. 26(1).

S. 93(3)(a) inserted by No. 43/1998 s. 26(1).

S. 93(3)(b) inserted by No. 43/1998 s. 26(1).



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(c) without the written consent of the police officer who issued the embargo notice, moves; or

(d) transfers; or

(e) otherwise deals with—

the property, or any part of the property, while the embargo notice is in force is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum) or a level 5 fine (1200 penalty units maximum) or both.

(4) It is a defence to a prosecution for an offence against subsection (3) to prove that the accused moved the property or the part of the property for the purpose of protecting and preserving it.

(5) Despite anything in any other Act, a sale, lease, transfer or other dealing with property in contravention of this section is void.

(6) If an application for a restraining order or a civil forfeiture restraining order in respect of tainted property to which an embargo notice relates is not made within 21 days after the issue of an embargo notice, the embargo notice ceases to be in force at the end of that period but, if such an application is made, it continues in operation until that application is determined.

S. 93(3)(c) inserted by No. 43/1998 s. 26(1), amended by No. 37/2014 s. 10(Sch. item 25.13).

S. 93(3)(d) inserted by No. 43/1998 s. 26(1).

S. 93(3)(e) inserted by No. 43/1998 s. 26(1).


S. 93(5) amended by No. 43/1998s. 26(2).

S. 93(6) amended by No. 68/2010 s. 57.



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94 Search of persons under search warrant

(1) A police officer executing a search warrant may, if the search warrant authorises him or her to do so, search any person found in or on the premises whom the police officer suspects on reasonable grounds of having on his or her person property of the kind described in the warrant.

(2) A person must not be searched under this section except by a person of the same sex.

95 Obstruction or hindrance of person executing search warrant

A person must not, without reasonable excuse, obstruct or hinder a person executing a search warrant or a seizure warrant.


95A Application for property seized under search warrants under other Acts to be held or retained under this Act

(1) A police officer may apply to the Magistrates' Court for a declaration that property seized under a warrant under—

(a) section 465 of the Crimes Act 1958; or

(b) section 81 of the Drugs, Poisons and Controlled Substances Act 1981—

is to be held or retained as if it were tainted property seized under a warrant under section 79 of this Act.

(2) An application under subsection (1) may only be made if—


S. 95 amended by No. 63/2003 s. 24(7).





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(a) the property is no longer required for evidentiary purposes under the Crimes Act 1958 or the Drugs, Poisons and Controlled Substances Act 1981 (as the case requires); and

(b) no direction has previously been made under section 465(1B) or 465C of the Crimes Act 1958 or section 81(1A) or 81C of the Drugs, Poisons and Controlled Substances Act 1981 (as the case requires).

(3) An application may be made within 7 days after the property is no longer required for evidentiary purposes under the Crimes Act 1958 or the Drugs, Poisons and Controlled Substances Act 1981 (as the case requires).

95B What must be in the application?

(1) An application under section 95A must be supported by evidence on oath or by affidavit of the applicant.

(2) An application under section 95A must specify—

(a) whether the warrant was issued under the Crimes Act 1958 or the Drugs, Poisons and Controlled Substances Act 1981; and

(b) when the warrant was issued; and

(c) the property seized under the warrant which is the subject of the application; and

(d) the grounds on which the applicant believes that the property seized under the warrant is tainted property; and

(e) whether any directions have been made in relation to the property and, if so, whether




254

those directions have been complied with; and

(f) the offence or offences with which the accused has been charged; and

(g) that the property which is the subject of the application is no longer required for evidentiary purposes under the Crimes Act 1958 or the Drugs, Poisons and Controlled Substances Act 1981 (as the case requires).

95C Court may make declaration

(1) If the Magistrates' Court is satisfied that it is appropriate to do so, the Court may make a declaration that property seized under a warrant under—

(a) section 465 of the Crimes Act 1958; or

(b) section 81 of the Drugs, Poisons and Controlled Substances Act 1981—

is to be held or retained as if it were tainted property seized under a warrant under section 79 of this Act.

(2) A declaration must—

(a) specify the property to which the declaration applies; and

(b) state that the specified property to which the declaration applies is to be held or retained as if it were tainted property seized under a warrant under section 79 of this Act.

95D Notice of declaration

S. 95B(2)(f) amended by No. 68/2009 s. 97(Sch. item 23.60).





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(1) If the Magistrates' Court makes a declaration under section 95C, the applicant for the declaration must give notice that the declaration has been made to all persons known to have an interest in the property to which the declaration applies that the property is being held or retained as if it were tainted property seized under a warrant under section 79 of this Act by virtue of a declaration made under section 95C.

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

(a) given within 7 days after the Magistrates' Court has made the declaration under section 95C; and

(b) in the prescribed form.

95E Effect of declaration

If a declaration is made under section 95C, the property to which the declaration applies—

(a) is deemed, on and from the date on which the property is no longer required for evidentiary purposes under the Crimes Act 1958 or the Drugs, Poisons and Controlled Substances Act 1981 (as the case requires), to have been seized as tainted property under a warrant under section 79 of this Act; and

(b) is to be dealt with under this Act accordingly.

96 Disposal of livestock or perishable property

(1) If property seized under a warrant is livestock or property of a perishable nature, a prescribed person authorised by the Minister for the purposes of this section may sell the property at any time after it has been seized without notice to the person from whose possession it was seized or any person who has an interest in the property if




256

in the opinion of the prescribed person it is necessary to sell the property to realise its value.

(2) The prescribed person must give written notice of the sale, in the prescribed manner, to—

(a) the person from whose possession the property was seized; and

(b) any person whom the prescribed person has reason to believe has an interest in the property—

within 14 days after that sale.

(3) The proceeds of sale must be paid into the Consolidated Fund.

(4) Section 97 applies to the proceeds of sale as if they were the property seized under the warrant.

97 Return of seized property

(1) If property has been seized under a warrant and—

(a) by the end of the period of 7 days after the property was seized, no person has been charged with the Schedule 1 offence in reliance on the commission of which the warrant was issued, and an application for a restraining order or a forfeiture order has not been made in respect of the property; or

(b) a person has been charged with and convicted of such an offence but by the end of the period of 6 months after the date of conviction or the end of the appeal period (if any) an application for a restraining order or a forfeiture order has not been made in respect of the property or such an application has been made but a forfeiture order has not been made or the property has been excluded from the restraining order or the forfeiture order or has been discharged or excluded on appeal under section 142; or

S. 97(1)(a) amended by No. 87/2004 s. 22(2)(f).



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(c) a person has been charged with such an offence and acquitted and by the end of the period of 7 days after the acquittal the property is not restrained by a civil forfeiture restraining order in relation to a Schedule 2 offence; or

(d) a person has been charged with and convicted of such an offence but the conviction is set aside and a new trial has not been ordered at the time of the setting aside of the conviction and by the end of the period of 7 days after the setting aside of the conviction the property is not restrained by a civil forfeiture restraining order in relation to a Schedule 2 offence—

then the Chief Commissioner of Police must arrange for the property to be returned to the person from whose possession it was seized or to such other person as the Minister or a prescribed person authorised by the Minister for the purposes of this subsection directs.

(2) If—

(a) property has been seized under a search warrant or a seizure warrant; and

(b) an application has been made under this Act to a court for a forfeiture order or civil forfeiture order in respect of the property; and

(c) the court refuses to make the order being sought—

S. 97(1)(c) amended by Nos 87/2004 s. 22(2)(g), 68/2010 s. 58.

S. 97(1)(d) amended by Nos 87/2004 s. 22(2)(g), 68/2009 s. 97(Sch. item 23.61), 68/2010 s. 58.

S. 97(2)(a) amended by No. 63/2003 s. 26(1).



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the court must make an order directing that the property be returned to the person from whose possession it was seized or to such other person as the Minister or a prescribed person authorised by the Minister for the purposes of this subsection directs forthwith or, if the refusal was a refusal to make a civil forfeiture order, at the time and in the circumstances specified in the order if the court considers that an application may yet be made for a forfeiture order.

(3) If property has been seized under a search warrant or a seizure warrant other than property seized under a warrant referred to in subsection (11) or sold under section 96, the person from whose possession the property was seized or any other person who claims an interest in the property may apply to the Magistrates' Court for an order—

(a) directing that the property be returned to that person; or

(b) directing that the person be allowed access to the property—

and the Court may, if it considers it appropriate, make such an order on such terms and conditions (if any) as it thinks fit.

(3A) If property has been seized under a search warrant or a seizure warrant (other than property seized under a warrant referred to in subsection (11) or sold under section 96), a prescribed person may apply to the Magistrates' Court for an order—

(a) directing that the property be returned to—

(i) the person from whose possession the property was seized; or

(ii) any other person who claims an interest in the property; or

S. 97(3) amended by No. 63/2003 s. 26(2).




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(b) directing that access to the property be given to—

(i) the person from whose possession the property was seized; or

(ii) any other person who claims an interest in the property—

and the Court may, if it considers it appropriate, make such an order on such terms and conditions (if any) as it thinks fit.

(4) The applicant for an order under subsection (3) or (3A) must give written notice of the application and of the date, time and place fixed for the hearing of it—

(a) to the DPP, to a prescribed person or a person belonging to a prescribed class of persons or to the appropriate officer, as the case requires; and


(5) Any person notified under subsection (4) 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 subsection (3) or (3A).

(6) If the Magistrates' Court makes an order under subsection (3) or (3A), an application for a variation, or the revocation, of the order may at any time be made to the Magistrates' Court by—

(a) the person referred to in subsection (4)(a); or

(b) the person from whose possession the property was seized; or

S. 97(4) amended by No. 63/2003 s. 26(4)(a).

S. 97(5) amended by No. 63/2003 s. 26(4)(a).

S. 97(6) amended by No. 63/2003 s. 26(4)(a).



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(c) any other person who claims an interest in the property.

(7) An applicant under subsection (6) must give written notice of the application and of the date, time and place fixed for the hearing of it—

(a) if the person referred to in subsection (4)(a) is the applicant, to the person from whose possession the property was seized and any other person whom the applicant has reason to believe has an interest in the property; and

(b) in any other case, to the person referred to in subsection (4)(a).

(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 subsection (9).

(9) On an application under subsection (6) the Magistrates' Court may, if it considers it appropriate—

(a) if the application is for a variation of the order, vary the order on any terms and conditions that it thinks fit; or

(b) if the application is for the revocation of the order, revoke the order on any terms and conditions that it thinks fit.

(10) A person must not knowingly contravene an order made under subsection (3) or (3A).


(11) This section (except subsections (3) and (3A)) applies to a search warrant or a seizure warrant issued in reliance on the commission of an interstate offence as if the references in it to a

S. 97(10) amended by No. 63/2003 s. 26(4)(a).

S. 97(11) amended by No. 63/2003 s. 26(4)(b)(i)(ii).



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forfeiture order included references to an interstate forfeiture order.



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Part 11A—Property management warrants

Division 1—Search and inspection warrants

97A Application for search and inspection warrant

(1) A prescribed person or a person who belongs to a prescribed class of persons may apply to a magistrate for a search and inspection warrant to be issued under this Division in respect of specified property—

(a) that is the subject of a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order; or

(b) to which an embargo notice relates; or

(c) that has been forfeited under this Act—

if the applicant believes on reasonable grounds that—

(d) it is necessary to inspect the property for the purposes of maintaining the property; and

(e) in the case of property other than real property, the property is, or may be within the next 72 hours, in or on specified premises.

(2) An application for a search and inspection warrant must be made in writing.

(3) A magistrate must not issue a search and inspection warrant unless—

Pt 11A (Headings and ss 97A–97W) inserted by No. 63/2003 s. 27.


S. 97A(1)(a) amended by Nos 68/2010 s. 59(1), 79/2014 s. 28.



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(b) the applicant has given the magistrate, either orally or in writing, any further information that the magistrate requires concerning the grounds on which the warrant is being sought; and

(c) the information given by the applicant is verified before the magistrate on oath or affirmation or by affidavit.

(4) A magistrate may administer an oath or affirmation or take an affidavit for the purposes of an application for a search and inspection warrant.

97B Search and inspection warrant

(1) A magistrate to whom an application is made under section 97A, if satisfied that there are reasonable grounds for believing the matters set out in the application, may issue a search and inspection warrant to the person or persons named in the warrant to enter the specified premises and search for and inspect the specified property.

(2) A search and inspection warrant issued under subsection (1) may authorise the person or persons named in the warrant—

(a) to enter the premises specified in the warrant; and

(b) to search for and inspect the property specified in the warrant; and

(c) to break open any receptacle in or on the premises specified in the warrant for the purposes of the search and inspection of the property specified in the warrant, if it is reasonably necessary to do so; and




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(d) to photograph or record by other means the property specified in the warrant; and

(e) to make an inventory of the property specified in the warrant.

(3) A search and inspection warrant issued under subsection (1) may authorise the sheriff or a person directed by the sheriff to break and enter the premises specified in the warrant.

(4) Nothing in a search and inspection warrant authorises—

(a) the seizure of property; or

(b) the arrest of a person.

(5) There must be stated in a search and inspection warrant—


(b) a description of the property authorised to be inspected; and

(c) whether a restraining order, a civil forfeiture restraining order, an unexplained wealth restraining order or an embargo notice relates to the property or whether the property is forfeited under this Act; and

(d) the address or other description of the premises in respect of which the warrant is issued.

(6) Every search and inspection warrant issued under subsection (1) must be in the prescribed form.

97C Record of proceedings for search and inspection warrant

(1) A magistrate who issues a search and inspection warrant must cause a record to be made of all

S. 97B(5)(c) amended by Nos 68/2010 s. 59(2), 79/2014 s. 29.




265

relevant particulars of the grounds he or she has relied on to justify the issue of the warrant.

(2) The magistrate may decline to record any matter that might disclose the identity of a person if the magistrate believes on reasonable grounds that to do so might jeopardise the safety of any person.

97D Announcement before entry

On executing a search and inspection warrant, the person executing the warrant—

(a) must announce that he or she is authorised by the warrant to enter the premises; and

(b) must give any person at the premises an opportunity to allow entry to the premises before force is used to enter the premises.

97E Copy of search and inspection warrant to be given to occupier

(1) A person executing a search and inspection warrant must—

(a) if the occupier is present at the premises where the warrant is being executed, identify himself or herself to the occupier and give the occupier a copy of the warrant; or

(b) if the occupier is not present at the premises where the warrant is being executed, identify himself or herself to any other person at the premises and give that person a copy of the warrant.


(2) If a person executing a search and inspection warrant—

(a) believes that the occupier is not present at the premises and that no other person is present at the premises; or





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(b) has given a copy of the warrant to a person at the premises who is not the occupier—

he or she must give the occupier a copy of the warrant as soon as practicable but not more than 7 days after the warrant is executed.


97F Use of assistants to execute search and inspection warrant

A person executing a search and inspection warrant may do so with the aid of any assistants that the person considers reasonably necessary to achieve the purpose for which the warrant was issued.

97G Application of Magistrates' Court Act 1989

Except to the extent that a contrary intention appears in this Division, the rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to search and inspection warrants under this Division.

97H Expiry of search and inspection warrant

(1) A search and inspection warrant ceases to have effect if it is recalled and cancelled by the magistrate who issued it.

(2) If subsection (1) does not apply, a search and inspection warrant ceases to have effect—







267

(b) when it is executed—


97I Report on execution of warrant etc.

(1) The person to whom a search and inspection warrant is issued must give a report to the registrar of the Magistrates' Court—


(b) if the warrant was executed, setting out briefly the result of the execution of the warrant (including a brief description of the property inspected); and

(c) if the warrant was not executed, setting out briefly the reasons why the warrant was not executed; and

(d) stating whether or not a copy of the warrant was given to the occupier or another person at the premises; and

(e) stating whether or not a copy of any inventory made of the property inspected and a notice as required by section 97J were given to any person who has an interest in the property inspected.

(2) A report must be—

(a) in the prescribed form; and

(b) made within 10 days after the expiry of the warrant.

(3) A person may apply to the Magistrates' Court for an order authorising the person to inspect the report given under subsection (1) if the person satisfies the Court that the person is—




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(b) a person who has an interest in property inspected in the execution of the warrant.

97J Copy of inventory to be given

(1) A person who executes a search and inspection warrant must give any person who has an interest in the property inspected—

(a) a copy of any inventory made of the property to which the warrant relates; and

(b) a written notice stating that the person who has an interest in the property may request a copy of any photograph or other record made of the property to which the warrant relates as specified in that notice.

(2) A copy of an inventory and a written notice required to be given under subsection (1) must be given within a reasonable time after the warrant was executed.

(3) If a person requests a copy of any photograph or other record in accordance with subsection (1), the person who executed the search and inspection warrant must give the copy or record to the person who made the request, within 14 days after the request was made.

97K Defects in search and inspection warrant

A search and inspection warrant is not invalidated by any defect, other than a defect which affects the substance of the warrant in a material particular.

97L Obstruction or hindrance of person executing search and inspection warrant

A person must not, without reasonable excuse, obstruct or hinder a person executing a search and






269

inspection warrant.


Division 2—Search and seizure warrants97M Application for search and seizure warrant

(1) A prescribed person or a person who belongs to a prescribed class of persons may apply to a magistrate for a search and seizure warrant to be issued under this Division in respect of specified property that has been forfeited under this Act if the applicant believes on reasonable grounds that the property is, or may be within the next 72 hours, in or on specified premises.

(2) An application for a search and seizure warrant must be made in writing.

(3) A magistrate must not issue a search and seizure warrant unless—


(b) the applicant has given the magistrate, either orally or in writing, any further information that the magistrate requires concerning the grounds on which the warrant is being sought; and

(c) the information given by the applicant is verified before the magistrate on oath or affirmation or by affidavit.

(4) A magistrate may administer an oath or affirmation or take an affidavit for the purposes of an application for a search and seizure warrant.

S. 97M inserted by No. 63/2003 s. 27.



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97N Search and seizure warrant

(1) A magistrate to whom an application is made under section 97M, if satisfied that there are reasonable grounds for believing the matters set out in the application, may issue a search and seizure warrant to the person or persons named in the warrant to enter the specified premises and search for and seize the specified property.

(2) A search and seizure warrant issued under subsection (1) may authorise the person or persons named in the warrant—

(a) to enter the premises specified in the warrant; and

(b) to break open any receptacle in or on the premises specified in the warrant for the purposes of the search and seizure of the property specified in the warrant, if it is reasonably necessary to do so; and

(c) to search for and seize the property specified in the warrant.

(3) A search and seizure warrant issued under subsection (1) may authorise the sheriff or a person directed by the sheriff to break and enter the premises specified in the warrant.

(4) Nothing in a search and seizure warrant authorises—

(a) the seizure of any property that is not specified in the warrant; or

(b) the arrest of a person.

S. 97N inserted by No. 63/2003 s. 27.



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(5) There must be stated in a search and seizure warrant—


(b) a description of the property authorised to be seized; and

(c) the address or other description of the premises in respect of which the warrant is issued.

(6) Every search and seizure warrant issued under subsection (1) must be in the prescribed form.

97O Record of proceedings for search and seizure warrant

(1) A magistrate who issues a search and seizure warrant must cause a record to be made of all relevant particulars of the grounds he or she has relied on to justify the issue of the warrant.

(2) The magistrate may decline to record any matter that might disclose the identity of a person if the magistrate believes on reasonable grounds that to do so might jeopardise the safety of any person.

97P Announcement before entry

On executing a search and seizure warrant, the person executing the warrant—

(a) must announce that he or she is authorised by the warrant to enter the premises; and

(b) must give any person at the premises an opportunity to allow entry to the premises before force is used to enter the premises.

S. 97O inserted by No. 63/2003 s. 27.

S. 97P inserted by No. 63/2003 s. 27.



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97Q Copy of search and seizure warrant to be given to occupier

(1) A person executing a search and seizure warrant must—

(a) if the occupier is present at the premises where the warrant is being executed, identify himself or herself to the occupier and give the occupier a copy of the warrant; or

(b) if the occupier is not present at the premises where the warrant is being executed, identify himself or herself to any other person at the premises and give that person a copy of the warrant.


(2) If a person executing a search and seizure warrant—

(a) believes that the occupier is not present at the premises and that no other person is present at the premises; or

(b) has given a copy of the warrant to a person at the premises who is not the occupier—

he or she must give the occupier a copy of the warrant as soon as practicable but not more than 7 days after the warrant is executed.


97R Use of assistants to execute search and seizure warrant

A person executing a search and seizure warrant may do so with the aid of any assistants that the person considers reasonably necessary to achieve the purpose for which the warrant was issued.

97S Application of Magistrates' Court Act 1989

S. 97Q inserted by No. 63/2003 s. 27.

S. 97R inserted by No. 63/2003 s. 27.

S. 97S inserted by No. 63/2003 s. 27.



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Except to the extent that a contrary intention appears in this Division, the rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to search and seizure warrants under this Division.

97T Expiry of search and seizure warrant

(1) A search and seizure warrant ceases to have effect if it is recalled and cancelled by the magistrate who issued it.

(2) If subsection (1) does not apply, a search and seizure warrant ceases to have effect—




97U Report on execution of search and seizure warrant etc.

(1) The person to whom a search and seizure warrant is issued must give a report to the registrar of the Magistrates' Court—


(b) if the warrant was executed, setting out briefly the result of the execution of the warrant (including a brief description of the property seized); and

(c) if the warrant was not executed, setting out briefly the reasons why the warrant was not executed; and

(d) stating whether or not a copy of the warrant was given to the occupier or another person at the premises.

(2) A report must be—

S. 97T inserted by No. 63/2003 s. 27.

S. 97U inserted by No. 63/2003 s. 27.



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(a) in the prescribed form; and

(b) made within 10 days after the expiry of the warrant.

(3) A person may apply to the Magistrates' Court for an order authorising the person to inspect the report given under subsection (1) if the person satisfies the Court that the person is—


(b) a person who has an interest in property seized in the execution of the warrant.

97V Defects in search and seizure warrant

A search and seizure warrant is not invalidated by any defect, other than a defect which affects the substance of the warrant in a material particular.

97W Obstruction or hindrance of person executing search and seizure warrant

A person must not, without reasonable excuse, obstruct or hinder a person executing a search and seizure warrant.


S. 97V inserted by No. 63/2003 s. 27.

S. 97W inserted by No. 63/2003 s. 27.



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Part 12—Examination orders98 Order for examination

(1) In this section, relevant person means the DPP or a prescribed person or a person belonging to a prescribed class of persons.

(2) If a court is satisfied that—

(a) an accused has been charged with or convicted of a Schedule 1 offence, a Schedule 2 offence or a serious drug offence or a court has made—

(i) a restraining order against property under section 18 in relation to a Schedule 2 offence; or

(ia) a serious drug offence restraining order against property under section 18; or

(ii) a civil forfeiture restraining order against property in relation to a Schedule 2 offence; and

(b) it is appropriate to make an order under this section—

the court may, on application by a relevant person, make an order for the examination before the court of any person concerning—

(c) the affairs of the accused or any other person, including the nature and location of—



S. 98(2)(a) substituted by No. 87/2004 s. 20(1), amended by No. 68/2009 s. 97(Sch. item 23.62(a)), substituted by No. 68/2010 s. 60(a), amended by No. 55/2014 s. 38(1)(a).S. 98(2)(a)(ia) inserted by No. 55/2014 s. 38(1)(b).

S. 98(2)(c) amended by Nos 87/2004 s. 20(2)(a), 68/2009 s. 97(Sch. item 23.62(b)).



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(i) any property in which the accused or person has or may have an interest; or

(ii) any property which the applicant for the order believes on reasonable grounds to be tainted property or restrained property; and

(d) issues connected with the effective management and maintenance of any property referred to in paragraph (c), including any income, expenditure or liabilities in relation to the property.

(2A) In determining whether it is appropriate to make an order under subsection (2) in respect of an accused who has been charged with a Schedule 1 offence, a Schedule 2 offence or a serious drug offence, the likelihood of the accused being convicted of the offence is not a relevant consideration.

(2B) If a court is satisfied that an unexplained wealth restraining order has been made against property and that it is appropriate to make an order under this section, the court may, on application by a relevant person, make an order for the examination before the court of any person concerning—

(a) the affairs of any person, including—

(i) any property in which the person or any other person has or may have an

S. 98(2)(c)(i) amended by Nos 87/2004 s. 20(2)(b), 68/2009 s. 97(Sch. item 23.62(b)).

S. 98(2)(c)(ii) amended by No. 42/2007 s. 15.

S. 98(2A) inserted by No. 63/2003 s. 28, amended by Nos 87/2004 s. 20(3), 68/2009 s. 97(Sch. item 23.62), 55/2014 s. 38(2).




277

interest; or

(ii) any property to which the applicant for the order suspects on reasonable grounds has not been lawfully acquired; and

(b) issues connected with the effective management and maintenance of any property referred to in paragraph (a), including income, expenditure or liabilities in relation to the property.

(3) An application for an order under subsection (2) or (2B) may be made by a relevant person to—

(a) if a restraining order is or has been made in reliance on the charging or conviction of the accused, the court which made the restraining order; or

(ab) if a civil forfeiture restraining order is or has been made in relation to a Schedule 2 offence, the court which made the civil forfeiture restraining order; or

(ac) if an unexplained wealth restraining order is or has been made, the court which made the unexplained wealth restraining order; or

(b) in any other case, any court.

(4) The applicant must give written notice of an application under this section to the accused and any person whom the applicant seeks to examine under the order.

(5) For the purposes of an application under this section in respect of a Schedule 2 offence or a

S. 98(3) amended by No. 79/2014 s. 30(2)(a).

S. 98(3)(a) amended by Nos 87/2004 s. 20(4), 68/2009 s. 97(Sch. item 23.62(b)), 68/2010 s. 60(b).

S. 98(3)(ab) inserted by No. 68/2010 s. 60(c).

S. 98(3)(ac) inserted by No. 79/2014 s. 30(2)(b).





278

serious drug offence, it does not matter that the charge has been withdrawn or finally determined.

99 Examination

(1) In an examination referred to in section 98(2), a person may not refuse or fail to answer a question that might tend to incriminate the person.

(2) A statement or disclosure made by a person in answer to a question put in the course of an examination referred to in section 98(2) is admissible against that person in—

(a) any civil proceeding; or

(b) a proceeding for giving false testimony in the course of the examination; or

(c) any proceeding under this Act—


(2A) Any information, document or other thing obtained as a direct or indirect consequence of a person making a statement or disclosure in answer to a question put in the course of an examination referred to in section 98(2) is admissible against that person in—

(a) any civil proceeding; or

(b) a proceeding for giving false testimony in the course of the examination; or

(c) any proceeding under this Act—


(3) A person who is ordered to attend an examination referred to in section 98(2) must not—




279

(a) without reasonable excuse, fail to attend as required by the order; or

(b) without reasonable excuse, fail to attend from day to day until the conclusion of the examination; or

(c) refuse or fail to take an oath or make an affirmation for the purpose of the examination; or

(d) refuse or fail to answer a question that the person is directed by the court to answer; or

(e) make a statement in the course of the examination that is false or misleading in a material particular.




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Part 13—Information gathering powers

Division 1—Production orders100 Application for production order—relevant offence

(1) In this section, relevant offence means a Schedule 1 offence, a Schedule 2 offence or a serious drug offence.

(2) If a person has been convicted of a relevant offence or a police officer believes that a person has committed a relevant offence, the police officer may, without notice, apply to a court for a production order against that person or another person.

(3) An application under subsection (2) must be supported by an affidavit of the applicant—

(a) stating, if a person has not been convicted of a relevant offence, that he or she believes that a person has committed a relevant offence; and

(b) stating that he or she believes that the person against whom the order is sought has possession or control of a property-tracking document or property-tracking documents in relation to that relevant offence; and

(c) setting out the grounds on which the applicant holds those beliefs.

(3A) An application under subsection (2) may be made in person or by telephone, facsimile or other form of electronic communication.

S. 100 (Heading) inserted by No. 79/2014 s. 31.

S. 100(1) amended by Nos 87/2004 s. 22(2)(h), 55/2014 s. 39.





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(4) The court hearing an application under subsection (2) may require the applicant to give it any additional information that it requires concerning the grounds on which the order is sought.

(5) An application under subsection (2) must be heard—

(a) out of court; or

(b) in closed court.

100A Application for production order—unexplained wealth

(1) A police officer may, without notice, apply for a production order against a person, or anyone else, if—

(a) the person is suspected of having engaged in serious criminal activity; or

(b) the person is suspected of having an interest in property that was not lawfully acquired.


(a) stating that a person is suspected of having engaged in serious criminal activity; and

(b) stating that the police officer suspects that the person against whom the order is sought has possession or control of a property-tracking document or property-tracking documents in relation to the serious criminal activity; and

(c) setting out the grounds on which the applicant holds those suspicions.

S. 100(5) substituted by No. 27/2016 s. 19(2).


S. 100A(1) substituted by No. 27/2016 s. 20(1).



282

(2A) An application under subsection (1) may be made in person or by telephone, facsimile or other form of electronic communication.

(3) The court hearing an application under subsection (1) may require the applicant to give it any additional information that it requires concerning the grounds on which the order is sought.

(4) An application under subsection (1) must be heard—

(a) out of court; or

(b) in closed court.

101 Production orders

(1) A court may, on an application under section 100(2) or 100A(1), if it considers that, having regard to the matters contained in the affidavit of the applicant and to any other sworn evidence before it, there are reasonable grounds for doing so, make a production order against the person and, if it is in the public interest to do so, an order under subsection (6).

(2) A production order may require the person against whom it is made—

(a) to produce to a police officer at a specified time and place; or

(b) to make available to a police officer for inspection at a specified time or times—

any property-tracking documents that are in the person's possession or control.


S. 100A(4) substituted by No. 27/2016 s. 20(3).

S. 101(1) amended by No. 79/2014 s. 33(1).





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

(a) states that he or she believes that—

(i) the person who was convicted of or is believed to have committed the offence derived a benefit in relation to the offence, having regard to section 67 or 68 (as the case may be); and

(ii) property specified in the application—

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

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

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

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

(3A) In the case of an application under section 100A(1), if the applicant's affidavit—

(a) states that a person is suspected of having engaged in serious criminal activity; and

(b) states that the applicant believes that property specified in the application—

(i) is subject to the effective control of a person suspected of having engaged in serious criminal activity; or

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

S. 101(3) amended by No. 79/2014 s. 33(2).




284

(c) sets out the grounds on which the applicant holds that belief—

the court may if it considers that, having regard to the matters contained in that affidavit and to any other sworn evidence before it, there are reasonable grounds for doing so, treat any document relevant to identifying, locating or quantifying that property as a property-tracking document in relation to the serious criminal activity.

(4) The court must not make a production order of the kind referred to in subsection (2)(a) in respect of any ledgers, day-books, cash-books, account books or other accounting records used in the ordinary business of banking or in respect of any document contained in a public register required to be kept by or under any Act.

(5) When a production order has been made the applicant must give written notice of its making to the person against whom it is made.

(6) If a court makes a production order against a person, it may order that—

(a) the person must not disclose the existence or contents of the order to any person except a legal practitioner acting for or engaged on behalf of the person against whom the production order is made; and

(b) the legal practitioner must not disclose the existence or contents of the order to any person other than the person for whom the legal practitioner is acting or on whose behalf the legal practitioner has been engaged.

S. 101(6)(a) amended by No. 43/1998 s. 28(a).

S. 101(6)(b) amended by No. 43/1998 s. 28(b)(i)(ii).



285

102 Powers under production orders

(1) If a document is produced to a police officer under a production order, the police officer may do any one or more of the following—

(a) inspect the document;

(b) take extracts from the document;

(c) make copies of the document;

(d) retain the document if, and for so long as, retention of the document is reasonably necessary for the purposes of this Act.

(2) If a document is made available to a police officer for inspection under a production order, the police officer may do any one or more of the following—

(a) inspect the document;

(b) take extracts from the document;

(c) make copies of the document.

(3) If a police officer retains a document under a production order, he or she must, on request by the person against whom the order was made—

(a) give the person a copy of the document certified by the police officer in writing to be a true copy of the document; and

(b) unless the person has been given a copy of the document under paragraph (a), permit the person to do any one or more of the following—

(i) inspect the document;

(ii) take extracts from the document;

(iii) make copies of the document.

S. 102(1) amended by No. 37/2014 s. 10(Sch. item 25.18(a)).


S. 102(3) amended by No. 37/2014 s. 10(Sch. item 25.18(c)(i)).

S. 102(3)(a) amended by No. 37/2014 s. 10(Sch. item 25.18(c)(ii)).



286

103 Expiry of production order

A production order ceases to have effect—




104 Report on execution of production order etc.

(1) The person to whom a production order is issued must give a report in writing to the magistrate or judge who made the order—

(a) stating whether or not the order was executed; and

(b) if the order was executed—setting out briefly the result of the execution of the order (including a brief description of any document inspected, copied or retained or from which an extract was taken); and

(c) if the order was not executed—setting out briefly the reasons why the order was not executed.

(2) A report must be made within 10 days after the expiry of the production order.

105 Absence etc. of magistrate or judge who made production order

If the magistrate or judge who made a production order has ceased to hold office or is absent, a report required to be given to him or her under section 104 must be given to any other magistrate or judge.



287

106 Effect of production orders on proceedings etc.

(1) A person is not excused from producing or making available a document when required to do so by a production order on the ground that to do so—

(a) might tend to incriminate the person or make the person liable to a penalty; or

(b) would be in breach of an obligation by a legal practitioner to a client not to disclose the existence or contents of the document; or

(c) would be in breach of an obligation (whether imposed by enactment or otherwise) of the person not to disclose the existence or contents of the document.

(2) If a person produces or makes available a document under a production order—

(a) the production or making available of the document; or

(b) any information, document or thing obtained as a direct or indirect consequence of the production or making available of the document—

is not admissible against the person or another person to whom the person owes the obligation referred to in paragraph (b) or (c) of subsection (1) in any criminal proceedings other than proceedings for an offence against section 108.

(3) An action, suit or proceeding does not lie against a person who, in breach of an obligation (whether imposed by enactment or otherwise) of the person not to disclose the existence or contents of a document, produces or makes available the document when required to do so by a production order.

S. 106(1)(b) amended by No. 43/1998 s. 29(1).

S. 106(1)(c) inserted by No. 43/1998 s. 29(1).

S. 106(2) amended by No. 43/1998 s. 29(2).



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107 Variation of production orders

(1) If a court makes a production order requiring a person to produce a document, the person against whom the order is made may apply to the court for a variation of the order.

(2) An applicant must give written notice of the application to the applicant for the production order.

108 Failure to comply with production order

(1) A person against whom a production order is made must not—

(a) contravene the order without reasonable excuse; or

(b) in purported compliance with the order, produce or make available a document known to the person to be false or misleading in a material particular without—

(i) indicating to the police officer to whom the document is produced or made available that the document is false or misleading and the respect in which it is false or misleading; and

(ii) providing correct information to the police officer if the person is in possession of, or can reasonably acquire, the correct information.


(2) A person against whom a production order is made must not—

(a) without reasonable excuse, destroy, dispose of or deliver to another person documents subject to the order that were in the

S. 108(1)(b)(i) amended by No. 37/2014 s. 10(Sch. item 25.19).




289

possession or control of the first mentioned person when notice of the making of the order was given to the person; or

(b) in any other manner obstruct or evade compliance with the order.


(3) A person must not contravene an order made under section 101(6).


Division 2—Search powers109 Application for search warrant for property-

tracking documents

(1) The DPP or a police officer may apply to a magistrate or to a judge of the Supreme Court or County Court for a search warrant for property-tracking documents in relation to a Schedule 1 offence, a Schedule 2 offence or a serious drug offence of which a person has been convicted or which the applicant has reasonable grounds for believing to have been committed by a person.

(2) An application can only be made under subsection (1) if the applicant has reasonable grounds for believing that there is, or may be within the next 72 hours, in or on any premises, a property-tracking document in relation to the Schedule 1 offence, the Schedule 2 offence or the serious drug offence.

S. 109(1) amended by Nos 87/2004 s. 22(2)(i), 37/2014 s. 10(Sch. item 25.19), 55/2014 s. 40(1).

S. 109(2) amended by Nos 87/2004 s. 22(2)(j), 55/2014 s. 40(2).



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(3) An application under subsection (1)—

(a) must be in writing; and

(b) must be supported by evidence on oath or by affidavit setting out the grounds on which it is made; and

(c) must be heard in closed court.

(4) A magistrate or judge hearing an application under subsection (1) may require the applicant to give him or her, either orally or in writing, any additional information that he or she requires concerning the grounds on which the order is sought.

110 Search warrants

(1) A magistrate or judge to whom an application is made under section 109(1) may issue a search warrant if satisfied that there are reasonable grounds for doing so.

(2) A magistrate or judge must not issue a search warrant unless he or she is satisfied that—

(a) the document cannot be identified or described with sufficient particularity to enable a production order to be made in respect of it; or

(b) a production order made in respect of the document has not been complied with; or

(c) there are reasonable grounds to suspect that it would be unlikely that any production order made in respect of the document would be complied with; or

(d) the investigation might be seriously prejudiced if the applicant did not gain immediate access to the document without notice to any person.



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(3) If the applicant's affidavit—

(a) states that he or she believes that—

(i) the person who was convicted of the offence, or is believed to have committed the offence, derived a benefit in relation to the offence, having regard to section 67 or 68 (as the case may be); and

(ii) property specified in the application—

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

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

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

the magistrate or judge may if he or she considers that, having regard to the matters contained in that affidavit and to any other sworn evidence before him or her, there are reasonable grounds for doing so, treat any document relevant to identifying, locating or quantifying that property as a property-tracking document in relation to the offence.

(4) There must be stated in a search warrant—



(c) a description of the kind of documents authorised to be seized.

(5) Every warrant issued under this section must be in the prescribed form.



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111 Expiry of warrant

A search warrant ceases to have effect—


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

(c) when it is executed—


112 Application of Magistrates' Court Act 1989

Except to the extent that a contrary intention appears in this Division, the rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to warrants under this Division.

113 Authority conferred by search warrant

A search warrant authorises the person to whom it is directed, with any assistants and by any force that is necessary and reasonable—

(a) to break, enter and search any premises named or described in the warrant for any document of the kind described in the warrant; and

(b) to seize any document found in the course of the search that the person executing the warrant believes, on reasonable grounds, to be a document of that kind; and

(c) to seize any document or thing found in the course of the search that the person executing the warrant believes, on reasonable grounds—

(i) to be a property-tracking document in relation to the offence (although not of a kind described in the warrant) or in

S. 113(c)(i) amended by No. 87/2004 s. 22(2)(k).



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relation to another Schedule 1 offence or Schedule 2 offence; or

(ii) to be a thing that will afford evidence about the commission of a Schedule 1 offence—

and that he or she believes, on reasonable grounds, is necessary to be seized in order to prevent its concealment, loss or destruction.

114 Search for documents with consent

Nothing in this Division prevents a police officer, with the consent of the occupier of any premises, entering and searching the premises for a property-tracking document in relation to a Schedule 1 offence or a Schedule 2 offence and seizing any document found in the course of the search that he or she believes, on reasonable grounds, to be a document of that kind.

Division 3—Monitoring orders115 Application for monitoring order

(1AA) In this section, IBAC Commissioner means the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011.

(1) The IBAC Commissioner or a police officer may, without notice, apply to the Supreme Court for an order directing a financial institution to give to a particular law enforcement agency information obtained by the institution about transactions conducted through an account held by a particular person with the institution, including information about—

S. 113(c)(ii) amended by No. 87/2004 s. 22(2)(l).

S. 114 amended by Nos 87/2004 s. 22(2)(m), 37/2014 s. 10(Sch. item 25.19).

S. 115(1AA) inserted by No. 87/2004 s. 21(1), amended by No. 34/2008 s. 143(Sch. 2 item 2), substituted by No. 82/2012 s. 156(1).

S. 115(1) amended by Nos 87/2004 s. 21(2), 82/2012 s. 156(2), 37/2014 s. 10(Sch. item 25.19).



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(a) the making of a fixed term deposit; and

(b) the transfer of the whole or of any part of a fixed term deposit at the end of the term.


(a) stating that he or she believes that the person in respect of whose account the information is sought—



(iii) has benefited directly or indirectly, or is about to benefit directly or indirectly, from the commission of a Schedule 1 offence or a Schedule 2 offence; or

(iv) has engaged in serious criminal activity; and

(b) setting out the grounds on which the applicant holds those beliefs.

(3) The Supreme Court may require the applicant to give it any additional information that it requires concerning the grounds on which the order is sought.

(4) An application under subsection (1) must be heard in closed court.

S. 115(2)(a)(i) amended by Nos 87/2004 s. 21(3), 55/2014 s. 41(a).

S. 115(2)(a)(iii) amended by Nos 55/2014 s. 41(b), 79/2014 s. 34(a).

S. 115(2)(a)(iv) inserted by No. 79/2014 s. 34(b).



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116 Monitoring orders

(1) The Supreme Court may, on an application under section 115(1), if it considers that, having regard to the matters contained in the affidavit of the applicant and to any other sworn evidence before it, there are reasonable grounds for doing so, make a monitoring order against the financial institution.

(2) A monitoring order must specify—

(a) the name or names in which the account is believed to be held; and

(b) the kind of information that the financial institution is required to give; and

(c) the law enforcement agency to which the information is to be given; and

(d) the manner in which the information is to be given; and

(e) the period during which the order is to have effect.

(3) A period specified under subsection (2)(e) must not commence earlier than the day on which notice of the order is given to the financial institution and must not end later than 3 months after the date of the order.

(4) If a financial institution is, or has been, subject to a monitoring order, the fact that the monitoring order has been made must be disregarded for the purposes of the application of section 194 or 195A of the Crimes Act 1958 in relation to the institution.

(5) When a monitoring order has been made the applicant must give written notice of its making to the financial institution against whom it is made.

S. 116(4) amended by No. 104/2003 s. 5(6).



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117 Failure to comply with monitoring order

(1) A financial institution that has been given notice of a monitoring order must not knowingly—

(a) contravene the order; or

(b) in purported compliance with the order give information that is false or misleading in a material particular.



118 Existence and operation of monitoring order not to be disclosed

(1) A financial institution that is, or has been, subject to a monitoring order must not disclose the existence or operation of the order to any person (including the person to whom the order relates) except—

(a) if the order specifies Victoria Police as the law enforcement agency to which information is to be given—a police officer; or

(b) if the order specifies another authority or person as the law enforcement agency to which information is to be given—a member, or member of the staff, of the agency; or

(c) an officer or agent of the financial institution, for the purpose of ensuring that the order is complied with; or




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(d) a legal practitioner acting for the financial institution, for the purpose of obtaining legal advice or representation in relation to the order.


(2) The law enforcement agency to which information is given under a monitoring order must give that information to a prescribed person authorised by the Minister for the purposes of this subsection.

(3) A person to whom the existence or operation of a monitoring order is disclosed in accordance with subsection (1) or to whom information is given under subsection (2) must not—

(a) while he or she is a person of a kind referred to in paragraph (a), (b), (c) or (d) of subsection (1) or a person referred to in subsection (2), disclose the existence or operation of the order to any person except another person of that kind for the purpose of—

(i) if the disclosure is made by a person of a kind referred to in paragraph (a) or (b) of subsection (1) or a person referred to in subsection (2)—the performance of his or her duties; or

(ii) if the disclosure is made by an officer or agent of the financial institution—ensuring that the order is complied with or obtaining legal advice or representation in relation to the order; or



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(iii) if the disclosure is made by a legal practitioner—giving legal advice or providing representation in relation to the order; or

(b) when he or she is no longer a person of a kind referred to in paragraph (a), (b), (c) or (d) of subsection (1) or a person referred to in subsection (2), make a record of, or disclose, the existence or operation of the order in any circumstances.


(4) Nothing in subsection (3) prevents the disclosure by a person of a kind referred to in paragraph (a) or (b) of subsection (1) or a person referred to in subsection (2) of the existence or operation of a monitoring order—



(5) A person of a kind referred to in paragraph (a) or (b) of subsection (1) or a person referred to in subsection (2) must not be required to disclose to any court the existence or operation of a monitoring order.

(6) A reference in this section to disclosing the existence or operation of a monitoring order to a person includes a reference to disclosing information to the person from which the person could reasonably be expected to infer the existence or operation of the monitoring order.




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Division 3A—Information notices

118A Definition

In this Division—

authorised police officer means a police officer authorised under section 118B.

118B Chief Commissioner of Police may authorise police to issue information notices

The Chief Commissioner of Police may authorise in writing a police officer of the rank of inspector or above to issue information notices.

118C Who can issue information notices?

An information notice may be issued in accordance with this Division by—

(a) an authorised police officer; or

(b) a prescribed person.

118D Issuing information notices—authorised police officer

Pt 13 Div. 3A (Heading and ss 118A–118M) inserted by No. 63/2003 s. 29.


S. 118A def. of authorised member of the police force substituted as authorised police officer by No. 37/2014 s. 10(Sch. item 25.21).

S. 118B inserted by No. 63/2003 s. 29, amended by No. 37/2014 s. 10(Sch. item 25.22).


S. 118C(a) amended by No. 37/2014 s. 10(Sch. item 25.22).

S. 118D (Heading) amended by No. 37/2014 s. 10(Sch. item 25.23).




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(1) An authorised police officer may issue an information notice to a financial institution for the purposes of any proceedings under this Act.

(2) An authorised police officer must not issue an information notice unless he or she reasonably believes that—

(a) the person in respect of whose account with the financial institution the information is sought or a person who has an interest in that account—



(iii) has benefited directly or indirectly, or is about to benefit directly or indirectly, from the commission of a Schedule 1 offence or a Schedule 2 offence; or

(iv) has engaged in serious criminal activity; and

S. 118D(1) amended by Nos 104/2003 s. 5(7), 37/2014 s. 10(Sch. item 25.24).


S. 118D(2)(a)(i) amended by Nos 87/2004 s. 22(2)(n), 55/2014 s. 42(a).

S. 118D(2)(a)(iii) amended by Nos 55/2014 s. 42(b), 79/2014 s. 35(a).

S. 118D(2)(a)(iv) inserted by No. 79/2014 s. 35(b).



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

118E Issuing information notices—prescribed person

(1) A person prescribed for the purposes of section 118C may issue an information notice to a financial institution for the purposes of satisfying a pecuniary penalty order.

(2) A person prescribed for the purposes of section 118C must not issue an information notice under subsection (1) unless he or she reasonably believes that—

(a) a pecuniary penalty order has been made against an accused in relation to a Schedule 1 offence or a Schedule 2 offence; and

(b) the issuing of the information notice is required to satisfy the pecuniary penalty order.

(3) A person prescribed for the purposes of section 118C may issue an information notice to a financial institution for the purposes of—

(a) managing specified property in respect of which a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order has been made; or

(b) managing or disposing of specified property that has been forfeited under this Act.

(4) A person prescribed for the purposes of section 118C must not issue an information notice under subsection (3) unless he or she reasonably believes that—


S. 118E(2) amended by No. 68/2010 s. 25(1).

S. 118E(2)(a) amended by Nos 87/2004 s. 22(2)(o), 68/2009 s. 97(Sch. item 23.63).

S. 118E(3) inserted by No. 68/2010 s. 25(2).

S. 118E(3)(a) amended by No. 79/2014 s. 36.

S. 118E(4) inserted by No. 68/2010 s. 25(2).



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(a) the specified property is subject to a mortgage or other security interest in favour of the financial institution; and

(b) the issuing of the information notice is required to manage or dispose of the specified property.

118F Information notice to be signed and reasons recorded

(1) A person who issues an information notice must sign the notice.

(2) A person who issues an information notice must make a written record of the reasons he or she has relied on to justify the issuing of the information notice.

118G What can an information notice require?

(1) An information notice may require a financial institution to give to the law enforcement agency specified in the information notice the following information only—

(a) if the information notice specifies a name or names in which an account is believed to be or to have been held—

(i) whether an account is or was held in that name or those names with the financial institution; and

(ii) if an account is or was held in that name or those names with that institution, the account number, the



S. 118G(1)(a) amended by No. 27/2016 s. 21(a).

S. 118G(1)(a)(i) amended by No. 27/2016 s. 21(b).

S. 118G(1)(a)(ii) amended by Nos 68/2010 s. 26(1), 27/2016 s. 21(b).



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type of account and current balance of that account; or

(b) if the information notice specifies an account number—

(i) the name or names in which that account is or was held; and

(ia) the type of account; and

(ii) if still held with the financial institution, the balance of that account.

(1A) An information notice issued under section 118E(3) may require the information referred to in subsection (1) only in respect of an account that relates to the mortgage or other security interest secured by the property specified in the information notice.

(2) An information notice may only require a financial institution to give information to the law enforcement agency of which the person who issued the information notice is a member or an officer or an employee.

118H What must the information notice contain?

(1) An information notice must be in the prescribed form.

(2) An information notice must specify—

(a) the name of the person who has issued the information notice; and

(b) the section of this Act under which that person is authorised to issue information

S. 118G(1)(b)(i) amended by No. 27/2016 s. 21(c).

S. 118G(1)(b)(ia) inserted by No. 68/2010 s. 26(2).

S. 118G(1)(b)(ii) substituted by No. 27/2016 s. 21(d).S. 118G(1A) inserted by No. 68/2010 s. 26(3).




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notices; and

(ba) if the information notice is issued under section 118E(3), details of the property believed to be subject to a mortgage or other security interest in favour of the financial institution; and

(c) the name of the financial institution; and

(d) the name or names in which the account is believed to be or to have been held or the account number of the account believed to be or to have been held with the financial institution (as the case requires); and

(e) any other details that may assist the financial institution to identify the account; and

(f) the kind of information that the financial institution is required to give; and

(g) the law enforcement agency to which the information is to be given, being the law enforcement agency of which the person who issued the information notice is a member or an officer or an employee; and

(h) that the information required is to be given in writing; and

(i) the period within which the financial institution is to comply with the information notice, being a period of not less than 3 business days after the date on which the information notice is given to the financial institution; and

(j) the effect of sections 118J, 118K and 118L.

118I How is an information notice given?

An information notice must be given to a financial institution in accordance with section 137 and,

S. 118H(2)(ba) inserted by No. 68/2010 s. 27.

S. 118H(2)(d) amended by No. 27/2016 s. 22.




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without limiting the generality of that section, may be given by facsimile.

118J Offence to fail to comply with information notice

(1) A financial institution that has been given an information notice must not—

(a) without reasonable excuse, fail to comply with the information notice; or

(b) in purported compliance with the information notice, knowingly give information that is false or misleading in a material particular.



118K Offence to disclose existence of information notice

(1) Subject to subsection (7), a financial institution that is given, or has been given, an information notice must not disclose the existence of the information notice to any person (including the person to whom the notice relates) except—

(a) if the information notice specifies Victoria Police as the law enforcement agency to which the information is to be given, a police officer; or

(b) if the information notice specifies another authority or person as the law enforcement agency to which information is to be given, a member or an officer or an employee of the agency; or

(c) an officer or agent of the financial institution, for the purpose of ensuring that the information notice is complied with; or



S. 118K(1)(a) amended by No. 37/2014 s. 10(Sch. item 25.25).



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(d) a legal practitioner acting for the financial institution, for the purpose of obtaining legal advice or representation in relation to the information notice.


(2) Subject to subsection (7), a person to whom the existence of an information notice is disclosed in accordance with subsection (1) must not—

(a) while he or she is a person of a kind referred to in paragraph (a), (b), (c) or (d) of subsection (1), disclose the existence of the information notice to any person except another person of that kind for the purpose of—

(i) if the disclosure is made by a person of a kind referred to in paragraph (a) or (b) of subsection (1), the performance of his or her duties; or

(ii) if the disclosure is made by an officer or agent of the financial institution, ensuring that the information notice is complied with or obtaining legal advice or representation in relation to the information notice; or

(iii) if the disclosure is made by a legal practitioner, giving legal advice or providing representation in relation to the information notice; or

(b) when he or she is no longer a person of a kind referred to in paragraph (a), (b), (c) or (d) of subsection (1), make a record of, or



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disclose, the existence of the information notice in any circumstances.


(3) Nothing in subsection (2) prevents the disclosure by a person of a kind referred to in paragraph (a), (b), (c) or (d) of subsection (1) of the existence of an information notice—



(4) Nothing in subsection (2) prevents the disclosure by a person of a kind referred to in paragraph (a) or (b) of subsection (1) of the existence of an information notice for the purposes of a report under section 139A(1) or (2).

(5) A reference in this section to disclosing the existence of an information notice to a person includes a reference to disclosing information to the person from which the person could reasonably be expected to infer the existence of the information notice.


(7) It is not an offence under this section to disclose the existence of an information notice if the existence of the information notice has been made known in any proceedings in open court.

118L Immunity from suit

No civil proceeding lies against—




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(a) a financial institution; or

(b) a person who is an officer, employee or agent of that financial institution acting in the course of that person's duties as an officer, employee or agent—

in relation to any action taken or information given by the institution or person in compliance with an information notice.

118M Giving of information notice to be disregarded for certain purposes

If a financial institution is given, or has been given, an information notice, the fact that the information notice has been issued must be disregarded for the purposes of the application of section 194 or 195A of the Crimes Act 1958 in relation to the institution.

Division 4—Reports of suspect transactions119 Reports of suspect transactions

(1) A cash dealer who is a party to a transaction and who has reasonable grounds for suspecting that information that the cash dealer has concerning the transaction—

(a) may be relevant to an investigation, or prosecution, of a person for an offence against a law of Victoria; or

(b) may be of assistance in the enforcement of this Act or the regulations made under this Act—

must, as soon as practicable, prepare a report of the transaction and communicate the information contained in it to the AUSTRAC CEO.

(2) Subsection (1) applies only where the cash dealer is not required to report the transaction under Division 2 of Part II of the Financial Transaction

S. 118M (Heading) substituted by No. 104/2003 s. 5(8)(a).S. 118M inserted by No. 63/2003 s. 29, amended by No. 104/2003 s. 5(8)(b).

S. 119(1) amended by No. 68/2010 s. 28(1).

S. 119(2) amended by No. 68/2010 s. 28(2).



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Reports Act 1988 of the Commonwealth or under section 41 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth.

(3) The report must—

(a) be in the form approved by the AUSTRAC CEO in writing for the purposes of section 16 of the Financial Transaction Reports Act 1988 of the Commonwealth;

(b) contain the reportable details of the transaction;

(c) set out the grounds for the suspicion referred to in subsection (1);

(d) be signed by the cash dealer.

(4) The communication to the AUSTRAC CEO of the information contained in the report must be made—

(a) by giving the AUSTRAC CEO a copy of the report; or

(b) in any other manner and form approved by the AUSTRAC CEO.

(5) An approval for the purposes of subsection (4)(b)—

(a) must be in writing; and

(b) may relate to a specified cash dealer or a specified class of cash dealers.

(6) A cash dealer who communicates information to the AUSTRAC CEO under subsection (1) or Division 2 of Part II of the Financial Transaction Reports Act 1988 of the Commonwealth must, if requested to do so by a police officer, give any

S. 119(3)(a) amended by No. 68/2010 s. 28(1).

S. 119(4) amended by No. 68/2010 s. 28(1).

S. 119(4)(a) amended by No. 68/2010 s. 28(1).

S. 119(4)(b) amended by No. 68/2010 s. 28(1).

S. 119(6) amended by Nos 43/1998 s. 30, 68/2010 s. 28(1), 37/2014 s. 10(Sch. item 25.26).



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further information that is related, whether directly or indirectly, to the information communicated to the AUSTRAC CEO and is specified in the request to the extent to which the cash dealer has that information.

(6A) A reporting entity who communicates information to the AUSTRAC CEO under section 41 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth must, if requested to do so by a police officer, give any further information that is related, whether directly or indirectly, to the information communicated to the AUSTRAC CEO and is specified in the request to the extent to which the reporting entity has that information.

(7) An action, suit or proceeding does not lie against—

(a) a cash dealer or reporting entity; or

(b) an officer, employee or agent of the cash dealer or reporting entity acting in the course of that person's appointment, employment or agency—

in relation to any action by the cash dealer, reporting entity or person taken in good faith under this section or taken in good faith in the reasonable belief that it was required by this section.

(8) A cash dealer or reporting entity or an officer, employee or agent of a cash dealer or reporting entity who communicates or gives information under this section must be taken, for the purposes

S. 119(6A) inserted by No. 68/2010 s. 28(3), amended by No. 37/2014 s. 10(Sch. item 25.26).

S. 119(7) amended by No. 68/2010 s. 28(4)(b)(c).



S. 119(8) amended by No. 68/2010 s. 28(5).



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of the offence of money laundering, not to have been in possession of that information at any time.

(9) A cash dealer must not refuse or fail—

(a) to prepare a report; or

(b) to communicate information to the AUSTRAC CEO—

when and as required under subsection (1).


(10) A cash dealer must not, in communicating information to the AUSTRAC CEO under subsection (1), knowingly—

(a) make a statement that is false or misleading in a material particular; or

(b) omit from a statement any matter or thing without which the statement is misleading in a material particular.


Division 4A—Sharing of information

S. 119(9)(b) amended by No. 68/2010 s. 28(1).

S. 119(10) amended by No. 68/2010 s. 28(1).

Pt 13 Div. 4A (Heading and s. 119A) inserted by No. 63/2003 s. 30.



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119A Communication of information between law enforcement agencies

A person who is a member or an officer or employee of a law enforcement agency may divulge or communicate any information to another law enforcement agency if the person divulging or communicating that information believes on reasonable grounds that to do so is necessary for—

(a) the management of property—

(i) seized under this Act; or

(ii) in respect of which a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order has been made; or

(iii) to which an embargo notice relates; or

(b) the purposes of any proceedings under this Act; or

(c) the enforcement of this Act or any orders made under this Act.

Division 5—Interstate offences120 Ministerial arrangements for transmission of

documents or information

(1) The Minister may enter into arrangements with a Minister to whom the administration of a corresponding law is committed under which—

(a) documents or things seized, copies or extracts of documents produced, and information obtained under this Part in respect of an interstate offence—

(i) are to be transmitted to the appropriate law enforcement agency in the place


S. 119A(a)(ii) amended by Nos 68/2010 s. 61, 79/2014 s. 36.



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where the corresponding law is in force for the purposes of investigation of, or proceedings in respect of, that offence; and

(ii) when no longer required for those purposes, are to be returned, unless disposed of by order or direction of a court, to the Chief Commissioner of Police in Victoria; and

(b) documents or things seized, copies or extracts of documents produced, and information obtained under the corresponding law in respect of a Schedule 1 offence—

(i) are to be transmitted to the Chief Commissioner of Police in Victoria; and

(ii) when no longer required for the purposes of investigation of, or proceedings in respect of the offence, are to be returned, unless disposed of by order or direction of a court, to the appropriate law enforcement agency in the place in which they were seized.

(2) The owner of a document or thing returned to the Chief Commissioner of Police in accordance with arrangements under subsection (1) is entitled to its return.

(3) The right referred to in subsection (2) is enforceable by action in detinue in a court of competent jurisdiction.

Division 6—Document requests

S. 120(1)(a)(ii) amended by No. 43/1998 s. 39(f).

S. 120(1)(b) amended by No. 87/2004 s. 22(2)(p).

S. 120(1)(b)(i) amended by No. 43/1998 s. 39(g).

Pt 13 Div. 6 (Heading and ss 120A–120E) inserted by No. 63/2003 s. 31.



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120A Document request relating to maintenance and management of property

(1) If, under a memorandum of understanding entered into under section 78A, the Secretary has responsibility for property, the Secretary may request any person whom the Secretary believes has possession or control of documents that relate to the maintenance and management of that property to produce those documents to the Secretary.

(2) A prescribed person may request any person whom the prescribed person believes has possession or control of documents that relate to the maintenance and management of property in respect of which a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order has been made or that has been forfeited under this Act to produce those documents to the prescribed person.

(3) A request under subsection (1) or (2) may be made only if the person making the request reasonably believes that production of the documents is necessary for the purpose of maintaining and managing the property.

120AB Document request relating to enforcement of pecuniary penalty order

(1) A prescribed person may request any person whom the prescribed person believes has possession or control of documents required for the enforcement of a pecuniary penalty order to produce those documents to the prescribed person.

S. 120A (Heading) substituted by No. 27/2016 s. 23.

S. 120A inserted by No. 63/2003 s. 31, amended by No. 68/2010 s. 29(1) (ILA s. 39B(1)).

S. 120A(2) inserted by Nos 68/2010 s. 29(1), 79/2014 s. 36.

S. 120A(3) inserted by No. 68/2010 s. 29(1).

S. 120AB inserted by No. 27/2016 s. 24.



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(2) A request under subsection (1) may be made only if the person making the request reasonably believes that—

(a) a pecuniary penalty order has been made against an accused in relation to a Schedule 1 offence or a Schedule 2 offence; and

(b) the production of the documents is necessary to enforce that pecuniary penalty order.

120B Document request

A document request must—


(b) in the case of a document request made under section 120A(1), specify the basis on which the Secretary has responsibility for the property; and

(c) specify the documents requested or the type of documents requested; and

(d) state the purposes for which the documents are sought; and

(e) state whether the documents will be provided to any other person and if so, in what circumstances; and

(f) be given to the person who is requested to produce the documents.

120C Offences

(1) A person who is given a document request must not, without reasonable excuse, fail to comply with the document request within 14 days after the day on which the document request is given.



S. 120B(b) amended by No. 68/2010 s. 29(2).




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(2) A person who is given a document request must not provide any document that is false or misleading in a material particular.


120D Requested documents to be provided—Court order

If a person has been convicted of an offence against section 120C, the court which convicts that person may direct the person to provide the documents that should have been provided to the Secretary or prescribed person, as the case may be.

120E Return of documents

(1) A document that is produced under this Division to the Secretary or a prescribed person must be returned to the person who produced the document within 7 days after so producing the document.

(2) If the Secretary or prescribed person believes on reasonable grounds that it is necessary for the purposes of this Act to retain the document for more than 7 days, the Secretary or prescribed person must give the person who produced the document a copy of the document certified in writing to be a true copy of the document.

* * * * *

S. 120D inserted by No. 63/2003 s. 31, amended by No. 68/2010 s. 29(3).


S. 120E(1) amended by No. 68/2010 s. 29(4).

S. 120E(2) amended by No. 68/2010 s. 29(5).

Pt 14 (Heading and ss 121–123) repealed by No. 104/2003 s. 5(1).



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Part 15—Interstate orders and warrants124 Definition

In this Part—

proceeds of crime means—

(a) proceeds of a Schedule 1 offence or an offence against a law of the Commonwealth that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence) committed in Victoria; or

(b) any property that is derived or realised, directly or indirectly, by any person from acts or omissions that—

(i) occurred outside Victoria; and

(ii) would, if they had occurred in Victoria, have constituted an offence referred to in paragraph (a).

125 Registration of interstate orders

(1) If—

(a) an interstate forfeiture order expressly applies to specified property in Victoria; or

(b) an interstate restraining order expressly applies to—

(i) specified property in Victoria; or

(ii) all property in Victoria of a specified person—

a copy of the order, sealed by the court which made it, may be registered in the Supreme Court by the applicant for the order or by the DPP or by a person who is prescribed for the purposes of this

S. 124 amended by No. 87/2004 s. 22(2)(q).



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subsection or a person of a class of persons so prescribed.

(2) A copy of any amendments made to an interstate order (whether those amendments were made before or after its registration in the Supreme Court), sealed by the court which made the amendments, may be registered in the same way, and the amendments do not, for the purposes of this Act, have effect until they are registered.

(3) Registration of an interstate order may be refused to the extent that the order would not, on registration, be capable of enforcement in Victoria.

(4) Registration is to be effected in accordance with the rules of the Supreme Court.

(5) A facsimile copy of an interstate order or of any amendments made to an interstate order is, if the facsimile copy is certified in accordance with the rules of the Supreme Court, to be regarded for the purposes of this Act as the same as the sealed copy but registration effected by means of it ceases to have effect at the end of 14 days unless the sealed copy has been registered by then.

(6) For the purposes of this section, a reference to a court is to be read as including a reference to any body or person who, under a corresponding law of the relevant jurisdiction, may make an interstate forfeiture order or interstate restraining order.

126 Effect of registration

(1) A registered interstate forfeiture order is, for the purposes of this Act (other than Parts 5, 6 and 7 and section 142) to be taken to be a forfeiture order made under section 33 at the time of registration.

S. 125(5) amended by No. 38/2017 s. 43.

S. 125(6) inserted by No. 20/2015 s. 4.



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(2) A registered interstate restraining order is, for the purposes of this Act (other than sections 19, 20, 26, 27, 72 and 142) to be taken to be a restraining order made under section 18.

127 Duration of registration

An interstate forfeiture order or an interstate restraining order ceases to be registered under this Act if—

(a) it ceases to be in force in the State or Territory in which it was made; or

(b) its registration is cancelled under this Act.

128 Cancellation of registration

(1) The registration of an interstate forfeiture order or an interstate restraining order may be cancelled by the Supreme Court or an officer of the Supreme Court prescribed by the rules of the Supreme Court if—

(a) registration was improperly obtained; or

(b) particulars of any amendments made to the order, or of any ancillary orders or directions made by a court, are not given to the Supreme Court in accordance with the requirements of the rules of the Supreme Court.

(2) The registration of an interstate forfeiture order or an interstate restraining order may be cancelled by the Supreme Court to the extent that the order is not capable of enforcement in Victoria.

S. 126(2) amended by No. 43/1998 s. 31.



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129 Charge on property subject to registered interstate restraining order

(1) If—

(a) an interstate restraining order has been made; and

(b) an interstate pecuniary penalty order is made—

then there is created, on the registration of the interstate restraining order under this Act or the registration in Victoria of the interstate pecuniary penalty order under the Service and Execution of Process Act 1992 of the Commonwealth (whichever is the later), a charge on all the property to which the restraining order applies to secure the payment of the pecuniary penalty.

(2) A charge created by subsection (1) on property ceases to have effect when under the corresponding law the charge created on the making of the pecuniary penalty order ceases to have effect.

(3) Subsections (4) and (5) of section 72 apply to a charge created by subsection (1) of this section in the same manner and to the same extent as they apply to a charge created by section 72(1) or (2).

130 Trustee may act as agent

A trustee may enter into an agreement to act as the agent of a person directed by an interstate restraining order to take control of property.

S. 129(1) amended by No. 74/2000 s. 3(Sch. 1 item 25).

S. 129(1)(a) amended by No. 20/2015 s. 5.



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131 Interstate orders and search warrants

(1) If property has been seized under a search warrant issued in reliance on the commission of an interstate offence and a court of the other State or the Territory makes an order—

(a) directing that the property be returned to the person from whose possession it was seized; or

(b) directing that that person be allowed access to the property—

the order must, as far as possible, be given effect to in Victoria.

(2) If—

(a) property to which this subsection applies has been seized in another State or a Territory under a search warrant issued under a corresponding law in reliance on the commission of a Schedule 1 offence; and

(b) an application has been made to a court for a forfeiture order or a civil forfeiture order or a restraining order for the purposes of automatic forfeiture or an unexplained wealth restraining order in respect of the property; and

(c) the court refuses to make the order or excludes the property from the operation of any restraining order or any civil forfeiture restraining order or any unexplained wealth restraining order made by it—

the court must make an order directing that the property be returned to the person from whose possession it was seized.

(3) If property to which this subsection applies has been seized in another State or a Territory under a search warrant issued under a corresponding law

S. 131(2)(a) amended by No. 87/2004 s. 22(2)(r).

S. 131(2)(b) amended by No. 79/2014 s. 37(a).

S. 131(2)(c) amended by Nos 68/2010 s. 62, 79/2014 s. 37(b).

S. 131(3) amended by Nos 87/2004 s. 22(2)(s), 55/2014 s. 43.



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in reliance on the commission of a Schedule 1 offence, a Schedule 2 offence or a serious drug offence, the person from whose possession the property was seized may apply to the Magistrates' Court for an order—

(a) directing that the property be returned to that person; or

(b) directing that the person be allowed access to the property—

and the Court may make such an order on such terms and conditions (if any) as it thinks fit.

(4) The applicant for an order under subsection (3) must give to the DPP or an appropriate officer written notice of the application and of the date, time and place fixed for the hearing of it.

(5) Subsections (2) and (3) apply to all property seized under a search warrant other than property that—

(a) was used in, or in connection with, the commission of an interstate offence; or

(b) was derived or realised, directly or indirectly, by any person, in relation to an interstate offence.



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Part 16—Miscellaneous132 Standard of proof

Any question of fact to be decided by a court on an application under this Act is to be decided on the balance of probabilities.

133 Nature of proceedings

(1) Proceedings on an application under this Act are civil in nature, except as otherwise provided by this Act.

(2) Despite subsection (1), the rules regulating the practice and procedure of a court in civil proceedings (except in relation to costs) do not apply to a proceeding on an application under this Act.

(3) The fact that criminal proceedings have been instituted or commenced is not a ground on which a court may stay proceedings under this Act.

133A Costs

(1) Costs may only be awarded in accordance with this section.

(1A) Nothing in subsection (1) affects the power of the court to award costs in any circumstances not referred to in this section.

(2) If—

(a) a person brings, or appears at, proceedings under this Act before a court in order—

(i) to prevent a forfeiture order or restraining order from being made against property of the person; or

(ii) to have property of the person excluded from a forfeiture order or restraining order; and

S. 133(2) amended by No. 68/2010 s. 30(1).





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(b) the person is successful in those proceedings; and

(c) the court is satisfied that the person was not involved in any way in the commission of the offence in respect of which the forfeiture order or restraining order was sought or made—

the court may order the applicant for the forfeiture order or restraining order to pay all costs incurred by the person in connection with the proceedings or any part of those costs that is determined by the court.

(3) If a person brings, or appears at, proceedings under this Act before the Supreme Court in order—

(a) to prevent a civil forfeiture order or a civil forfeiture restraining order from being made against property of the person; or

(b) to have property of the person excluded from a civil forfeiture order or a civil forfeiture restraining order—

the Supreme Court may order the applicant for the civil forfeiture order or civil forfeiture restraining order to pay all costs incurred by the person in connection with the proceedings or any part of those costs that is determined by the Court if—

(c) the Supreme Court refuses to make a civil forfeiture order under section 38; or

(d) the person is successful in those proceedings.

S. 133A(3) amended by No. 68/2010 s. 63(c).

S. 133A(3)(a) amended by No. 68/2010 s. 63(a).

S. 133A(3)(b) amended by No. 68/2010 s. 63(b).

S. 133A(3)(d) amended by Nos 68/2009 s. 97(Sch. item 23.64), 68/2010 s. 63(d).



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(3A) If—

(a) a person brings, or appears at, proceedings under this Act before a court in order—

(i) to prevent an unexplained wealth restraining order from being made against property of the person; or

(ii) to have property of the person excluded from an unexplained wealth restraining order or from unexplained wealth forfeiture; and

(b) the person is successful in those proceedings—

the court may order the applicant for the unexplained wealth restraining order to pay all the costs incurred by the person in connection with the proceedings or any part of those costs that is determined by the court.

(4) The amount of costs referred to in subsections (2), (3) and (3A) is in the discretion of the court.

Note


134 Crime Prevention and Victims' Aid Fund

(1) There shall continue to be a Trust Fund called the Crime Prevention and Victims' Aid Fund within the Public Account and the following must be paid into it—

(a) all money appropriated by Parliament for the purposes of the Fund;


S. 133A(4) amended by No. 79/2014 s. 38(2).

Note to s. 133A inserted by No. 42/2007 s. 18(Sch. item 21).



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(b) all money received by the State from the Confiscated Assets Trust Fund established under the Proceeds of Crime Act 1987 of the Commonwealth;

(c) all other money received for the purposes of the Fund.

(2) The Minister may pay out of the Fund any sums that he or she deems fit, and subject to any conditions, limitations or restrictions that he or she determines, for or towards—

(a) organisations involved in providing information, support or assistance to victims of crime; or

(b) the development or co-ordination of programs or services for the provision of information, support or assistance to victims of crime; or

(c) the development, implementation, co-ordination or evaluation of crime prevention and control programs; or

(d) criminological research.

* * * * *

134A Payment of money realised into Consolidated Fund

(1) Subject to subsection (2), all money realised under a forfeiture order, a civil forfeiture order or a pecuniary penalty order or by automatic forfeiture under section 35 or unexplained wealth forfeiture under section 40ZA or money paid to the State under an equitable sharing program, within the meaning of section 134B, must be paid into the Consolidated Fund.

S. 134(3) amended by No. 55/2014 s. 44, repealed by No. 79/2014 s. 43.




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(2) Money must not be paid into the Consolidated Fund if the money is required to be paid—

(a) to a person or body under section 75(1); or

(b) to another jurisdiction under section 134B.

134B Payment to other jurisdictions under equitable sharing program

(1) Subject to subsection (2), the Minister may direct that a payment be made to another jurisdiction of an amount out of property forfeited under this Act or out of the proceeds of the disposal of property forfeited under this Act.

(2) The Minister may give a direction under subsection (1) if—

(a) the other jurisdiction participates in an equitable sharing program with the State; and

(b) in the Minister's opinion, the other jurisdiction has made a significant contribution to the recovery of the forfeited property.Example

The other jurisdiction has made a significant contribution to the investigation or prosecution of the illegal activity associated with the forfeited property.

(3) Subject to subsection (4), the amount that the Minister may direct to be paid under subsection (1) is at the discretion of the Minister.

(4) The Minister must not direct the payment of money under subsection (1) if that money is required to be paid to a person or body under section 75(1).

S. 134B inserted by No. 79/2014.



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equitable sharing program means an arrangement under which—

(a) the State shares a proportion of property forfeited, or an amount payable, to the State under this Act with another jurisdiction that has made a significant contribution to the recovery of the property or the amount; and

(b) each other participating jurisdiction shares with the State a proportion of property forfeited, or an amount payable, to the jurisdiction under a corresponding law if, in the opinion of the appropriate Minister of that jurisdiction, Victoria has made a significant contribution to the recovery of the property or amount.

135 Conversion costs

Conversion costs are the reasonable costs and expenses incurred in locating, storing, maintaining or disposing of, or otherwise in connection with the conversion into money of, property to which a forfeiture order, a civil forfeiture order or a pecuniary penalty order or automatic forfeiture under section 35 or 36GA or unexplained wealth forfeiture under section 40ZA applies.

136 Stamp duty not payable

No stamp duty is payable under the Stamps Act 1958 in respect of the transfer of any property under this Act.

S. 135 substituted by No. 43/1998 s. 33, amended by Nos 55/2014 s. 45, 79/2014 s. 39.



329

137 Service of documents

(1) For the purposes of this Act, a document may be served on, or given to, a person—

(a) if the person is a natural person—

(i) by delivering it personally to the person; or

(ii) by sending it by post to the person at his or her usual or last known residential or business address; or

(iii) by leaving it at the person's usual or last known residential or business address with a person on the premises who is apparently at least 16 years old and apparently residing or employed there; or

(b) if the person is a company incorporated under the Corporations Act—

(i) by delivering it personally to the registered office of the company; or

(ii) by sending it by post to the registered office of the company; or

(iii) in any other way that service of documents may be effected on a body corporate; or

(c) if the person is an incorporated association within the meaning of the Associations Incorporation Reform Act 2012, in accordance with section 217 of that Act.

(2) If it appears to a court, by evidence on oath or by affidavit, that service cannot be promptly effected, the court may make an order for substituted service.


S. 137(1)(c) amended by No. 20/2012 s. 226(Sch. 5 item 5).



330

138 Maximum fine for body corporate

(1) If a body corporate is found guilty of an offence against this Act and the court has power to fine the body corporate, it may, unless the contrary intention appears, impose on the body corporate a fine not greater than 5 times the amount of the maximum fine that could be imposed by the court on a natural person found guilty of the same offence committed at the same time.

(2) This section has effect despite anything to the contrary in the Sentencing Act 1991 and despite the prescription of a maximum fine for the offence applicable to all offenders.

139 Law enforcement agency to provide information to Minister

A law enforcement agency must provide to the Minister any information that the Minister requires within the time specified by the Minister.

139A Reports to the Minister

(1) As soon as practicable after the end of each financial year, the Chief Commissioner of Police must submit a report to the Minister that includes the following information—

(a) the number of information notices issued by police officers; and

(b) the number of applications for freezing orders made by police officers—

(i) by telephone; and

(ii) by facsimile; and

(iii) in person; and

(c) the number of freezing orders made; and


S. 139A(1)(a) amended by No. 37/2014 s. 10(Sch. item 25.27).

S. 139A(1)(b) amended by No. 37/2014 s. 10(Sch. item 25.27).



331

(d) the number of freezing orders made in respect of accounts which were subsequently the subject of a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order; and

(e) the number of notices of freezing orders given under section 31G to financial institutions.

(2) As soon as practicable after the end of each financial year, a law enforcement agency prescribed for the purposes of this section must submit a report to the Minister that includes the following information—

(a) the number of information notices issued by the law enforcement agency; and

(b) the number of applications by the law enforcement agency for search and inspection warrants; and

(c) the number of search and inspection warrants issued to the law enforcement agency; and

(d) the number of search and inspection warrants executed by the law enforcement agency; and

(e) the number of search and inspection warrants executed by the law enforcement agency which involved the use of force to enter premises; and

(f) the number of document requests made by the law enforcement agency under a delegation by the Secretary in accordance with section 143A or by prescribed persons under section 120A or 120AB.

S. 139A(1)(d) amended by Nos 68/2010 s. 64, 79/2014 s. 40.

S. 139A(2)(f) amended by Nos 68/2010 s. 29(6), 27/2016 s. 25.



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(3) The Minister must cause each report under subsections (1) and (2) to be laid before each House of the Parliament within 14 sitting days of that House after it is received by the Minister.

140 Secrecy

(1) Except as provided by this section and section 119A, a person who obtains information, or to whom information is communicated or given, under Part 13 must not make a record of it or directly or indirectly divulge or communicate it otherwise than—

(a) with the consent of the person or body to whom the information relates; or

(b) in the course of performing a duty under or in connection with this Act; or

(c) in connection with the enforcement of the laws of the State.


(2) A person who obtains information, or to whom information is communicated or given, under Part 13 may, or may be compelled to, divulge or communicate the information to a court if it is necessary to do so for the purpose of any legal proceedings arising out of this Act or any proceedings for the enforcement of the laws of the State but is otherwise not competent or compellable to give evidence in relation to that information.

* * * * *

S. 140(1) amended by No. 63/2003 s. 33(a).

S. 140(3) repealed by No. 63/2003 s. 33(b).



333

(4) The provisions of this section are additional to, and do not take away from, any other provision of this Act prohibiting or limiting the disclosure of information.

Note

See also Part 5A of the Family Violence Protection Act 2008 in respect of the use and disclosure obligations of persons or bodies prescribed to be information sharing entities under that Act.

141 Court may hear applications at same time

(1) If an application for a civil forfeiture order, forfeiture order or pecuniary penalty order or a disposal order is made to a court before which a person was convicted of a Schedule 1 offence—

(a) the application may be dealt with by that court; and

(b) any function or power may be exercised and any duty may be performed by that court in relation to the civil forfeiture order, forfeiture order or pecuniary penalty order or disposal order—

whether or not that court is constituted in the same way as it was constituted when the person was convicted of the offence.

(2) A court may hear and determine at the same time—

(a) 2 or more applications under this Act; or

(b) applications under this Act and the Proceeds of Crime Act 1987 of the Commonwealth.

141A Arrangements to avoid operation of Act


scheme means—

(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether

Note to s. 140 inserted by No. 23/2017 s. 34.

S. 141(1) amended by No. 87/2004 s. 22(2)(t).




334

or not enforceable, or intended to be enforceable, by legal proceeding; or

(b) any plan, proposal, action, course of action or course of conduct.

(2) The DPP may apply to the Supreme Court for an order under subsection (6).

(3) The DPP must give written notice of the application to the person against whom the order is sought and any other person who the DPP considers has an interest in the property to which the scheme relates.

(4) At any time before it determines the application, the Supreme Court may direct the DPP to give notice of the application to any person, in the manner and within the time, that the Supreme Court considers appropriate.

(5) Any person who is given notice under subsection (4) is entitled to appear and to give evidence at the hearing of the application but the absence of a person does not prevent the Supreme Court from making an order under subsection (6).

(6) On an application under subsection (2), if the Supreme Court is satisfied that a person is carrying out, or has carried out a scheme for the purpose of directly or indirectly defeating, avoiding, preventing or impeding the operation of this Act, the Supreme Court may, in order to defeat that purpose, by order—

(a) declare the scheme to be void in whole or in part; or

(b) vary the operation of the scheme in whole or in part.

(7) For the purposes of subsection (6), in determining whether a scheme is being carried out or was carried out for the purpose of directly or indirectly



335

defeating, avoiding, preventing or impeding the operation of this Act, it is irrelevant whether or not that purpose was the only or dominant purpose for the scheme, as long as it was a substantial purpose.

(8) The Supreme Court may make any additional orders that it considers appropriate in the circumstances for or with respect to any consequential or related matter or for giving effect to any order of the court under this section, including orders relating to—

(a) the disposition of property;

(b) the payment of money;

(c) the sale, disposal or other realisation of property and the disposal of the proceeds;

(d) the creation of a charge on property in favour of any person and the enforcement of the charge created;

(e) the rights of a person who acquired an interest in the property while the scheme was being carried out or afterwards and before the declaration was made.

(9) The Supreme Court may rescind or vary an order made under this section.

(10) The Supreme Court must ensure that any orders made under subsection (6), (8) or (9)—

(a) constitute the minimum interference with a person's rights relating to property, home, family or children that is necessary in the circumstances to defeat the purpose of directly or indirectly defeating, avoiding, preventing or impeding the operation of this Act; and

(b) are reasonably related to the objects of this Act set out in section 3A.



336

142 Appeals

(1) Without affecting any other right of appeal, a person who has an interest in property in respect of which—

(a) a forfeiture order is made; or

(b) the Supreme Court or the County Court has made, or refused to make, an exclusion order under section 21, 22, 22A, 50(1), 52(1) or 54(1)—

may appeal against that order or refusal—

(c) in the case of a person convicted of an offence in reliance on which the order was made—in the same manner as if the order were, or were part of, the sentence imposed in respect of the offence; or

(d) in any other case—in the same manner as if the person had been convicted of the offence in reliance on which the order was made and the order were, or were part of, the sentence imposed in respect of the offence.

(2) Without affecting any other right of appeal, a person who has an interest in property in respect of which—

(a) a civil forfeiture order is made; or

(b) the Supreme Court or the County Court has made, or refused to make, a civil forfeiture exclusion order—

may appeal against that order or refusal in the same manner as if the person had been convicted of the Schedule 2 offence in relation to which the order was made and the order were, or were part of, the sentence imposed in respect of the offence.

S. 142(1)(b) amended by Nos 43/1998 s. 34(1), 42/2007 s. 16(1), 55/2014 s. 46.

S. 142(2) amended by No. 87/2004 s. 22(2)(u)(ii).

S. 142(2)(b) amended by Nos 87/2004 s. 22(2)(u)(i), 68/2010 s. 65(1).



337

(3) Without affecting any other right of appeal, a person against whom a pecuniary penalty order is made may appeal against that order in the same manner as if it were, or were part of, the sentence imposed in respect of the offence in relation to which the order was made.

(4) On appeal, a forfeiture order, a pecuniary penalty order, an exclusion order under section 21, 22, 22A, 50(1), 52(1) or 54(1) or a refusal to make an exclusion order under section 21, 22, 22A, 50(1), 52(1) or 54(1) may be confirmed, discharged or varied or the matter may be remitted for re-hearing to the court which made the order, or refused to make the order, with or without any direction in law.

(5) The DPP or a prescribed person or a person belonging to a prescribed class of persons may appeal to the Court of Appeal against—

(a) a civil forfeiture order or against the refusal of the Supreme Court or the County Court to make a civil forfeiture order; or

(b) the making of a civil forfeiture exclusion order; or

(ba) the making of an exclusion order under section 21, 22, 22A, 50(1), 52(1) or 54(1)—

* * * * *

S. 142(4) amended by Nos 43/1998 s. 34(2), 42/2007 s. 16(2), 68/2010 s. 65(2), 55/2014 s. 46.

S. 142(5)(a) amended by No. 87/2004 s. 22(2)(v)(i).

S. 142(5)(b) substituted by No. 68/2010 s. 65(3).S. 142(5)(ba) inserted by No. 42/2007 s. 16(3), amended by Nos 68/2010 s. 65(4)(a), 55/2014 s. 46.

S. 142(5)(c) amended by No. 87/2004 s. 22(2)(v)(ii), repealed by No. 68/2010 s. 65(4)(b).



338

in the same manner as if the order or refusal were, or were part of, a sentence imposed in respect of the offence.

(6) On appeal, a civil forfeiture order, a civil forfeiture exclusion order or a refusal to make a civil forfeiture exclusion order may be confirmed, discharged or varied or the matter may be remitted for re-hearing to the Supreme Court or the County Court, as the case may be, with or without any direction in law.

Note

In this section, references to any appeal being made in a manner as if it were, or were part of, a sentence imposed in respect of an offence are to enable the adoption of existing appeal procedures.

In the case of an order or refusal made in the Magistrates' Court, the requirements and procedures set out in Subdivision 1 of Division 4 of Part 4 of that Act and Schedule 6 to that Act, insofar as they are relevant, apply.

In the case of an order or refusal made in the County Court or the Supreme Court, the requirements and procedures set out in Part 6 of that Act and the relevant Rules of Court apply.

143 Provision of legal aid

(1) If a court is satisfied at any time that—

(a) a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order has been made in respect of property of a person and the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order, as the case requires, is in force; and

(b) the person is in need of legal assistance in respect of any legal proceeding, whether civil or criminal, and whether in respect of a charge to which the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order, as the case requires, relates or otherwise, because

S. 142(6) amended by Nos 87/2004 s. 22(2)(w), 68/2010 s. 65(5).


S. 143(1)(a) amended by Nos 68/2010 s. 66(a)(b), 79/2014 s. 41(1).

S. 143(1)(b) amended by Nos 18/2005 s. 18(Sch. 1 item 17.2), 68/2010 s. 66(b), 79/2014 s. 41(1)(b).



339

the person is unable to afford the full cost of obtaining legal assistance from a private law practice or private legal practitioner (within the meaning of the Legal Aid Act 1978) from unrestrained property or income of the person—

the court may order Victoria Legal Aid to provide legal assistance to the person, on any conditions specified by the court, and may adjourn the legal proceeding until such assistance has been provided.

(2) Despite anything in the Legal Aid Act 1978, Victoria Legal Aid must provide legal assistance in accordance with an order made under subsection (1).

(3) If—

(a) a court makes an order under this section; and

(b) a condition of the provision of legal assistance is that the cost or part of the cost, and any interest payable on the whole or the part of the cost, to Victoria Legal Aid of providing the assistance be secured by a charge over any land or any other property in which the person has an interest; and

(c) an amount required to be paid to Victoria Legal Aid under such a condition is not paid; and

(d) the person to whom legal assistance is provided is registered as the proprietor of an estate in fee simple, either solely or as a joint tenant or a tenant in common, in land under the Transfer of Land Act 1958 or holds an estate in fee simple or an equity of redemption, either solely or as a joint tenant



340

or a tenant in common, in land not under that Act—

Victoria Legal Aid may secure the payment of any amount which has not been paid (including any unpaid interest) and any interest which may become due and unpaid on the whole or any part of that amount by taking out a charge over that land.

(4) A charge taken out by Victoria Legal Aid is to be for the benefit of the Legal Aid Fund.

(5) Sections 47B, 47D and 47E of the Legal Aid Act 1978 apply to a charge over land referred to in this section as if it were a charge to which section 47A(2) of that Act applies.

(6) If an amount owed to Victoria Legal Aid under this section is not paid and Victoria Legal Aid is unable, by enforcing a charge to which subsection (3) applies or otherwise, to recover that amount, then the State must pay that amount to Victoria Legal Aid to the value of any property forfeited to the Minister or the amount of any penalty paid to the State (less conversion costs and any amount paid under section 31 or section 36ZB) in relation to the offence in reliance on which the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order, as the case requires, was made and the Consolidated Fund is, to the necessary extent, appropriated accordingly.

143A Delegation

The Secretary, by instrument, may delegate to any prescribed person any power or function of the Secretary under Division 6 of Part 13.

S. 143(5) amended by No. 20/2015 s. 6.

S. 143(6) amended by Nos 43/1998 ss 36(za), 39(h), 68/2010 s. 66(c), 79/2014 s. 41(2).




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144 Operation of other laws not affected

Nothing in this Act limits or restricts the operation of any other law providing for the forfeiture of property.

144A Validation

(1) A restraining order made on or before 26 September 2005 is not invalid only because it is directed to a named person and is deemed to have, and always to have had, effect according to its tenor.

(2) Subsection (1) does not affect the rights of the parties in the proceeding known as Director of Public Prosecutions (Vic.) v. Navarolli and Mokbel (No. 1545 of 2005) in the Supreme Court of Victoria.

145 Supreme Court—limitation of jurisdiction

(1) It is the intention of sections 55(10), 56(6), 57(6), 106(3) and 119(7) to alter or vary section 85 of the Constitution Act 1975.

(2) It is the intention of section 118L to alter or vary section 85 of the Constitution Act 1975.

146 Regulations

(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2) The regulations—

(a) may be of general or limited application; and

(b) may differ according to differences in time, place or circumstance.


S. 145 amended by No. 63/2003 s. 35 (ILA s. 39B(1)).

S. 145(2) inserted by No. 63/2003 s. 35.



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147 Rules of court

Rules of court made by the authority having for the time being power to make rules regulating the practice and procedure of a court may include rules for or with respect to—

(a) the joinder or severance of proceedings under this Act;

(b) the manner of giving any notice required to be given by or under this Act;

(c) the manner in which evidence of particular facts may be given in a proceeding under this Act.

* * * * *

Pt 17 (Heading and ss 148, 149) repealed by No. 29/2011 s. 3(Sch. 1 item 15).



343

Part 18—Consequential amendments and transitional provisions

* * * * *

* * * * *

* * * * *

157 Transitional provisions—Enactment of Confiscation Act 1997

(1) Subject to subsections (2) and (4), this Act applies with respect to forfeiture offences (other than civil forfeiture offences for the purposes of civil forfeiture) and interstate offences for which a criminal proceeding is commenced, or is to be commenced, after the commencement of Part 2, irrespective of when the offence to which the proceeding relates is alleged to have been committed.

(2) This Act applies with respect to civil forfeiture offences for the purposes of civil forfeiture only if they are alleged to have been committed after the commencement of Part 4.

Ss 150–154 repealed by No. 29/2011 s. 3(Sch. 1 item 15).

S. 155 substituted by No. 43/1998 s. 35, repealed by No. 29/2011 s. 3(Sch. 1 item 15).

S. 156 repealed by No. 29/2011 s. 3(Sch. 1 item 15).


S. 157(1) amended by No. 43/1998 s. 37.



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(3) For the purposes of subsection (2), if an offence is alleged to have been committed between two dates and Part 4 commences on a date between those two dates, the offence is alleged to have been committed before the commencement of that Part.

(4) Part 10 applies with respect to forfeiture offences of which a person is convicted after the commencement of that Part, irrespective of when the offence is alleged to have been committed.

(4A) The Crimes (Confiscation of Profits) Act 1986 continues to apply, despite its repeal, with respect to serious offences and interstate serious offences within the meaning of that Act for which a criminal proceeding was commenced before the commencement of Part 2 of this Act (irrespective of whether any conviction of that offence for the purposes of that Act occurs before or after the commencement of that Part) as if that Act had not been repealed.

(4B) Without limiting subsection (4A)—

(a) any application, appeal or order may be made, direction given, warrant issued or other thing done under the Crimes (Confiscation of Profits) Act 1986 that could have been made, given, issued or done under that Act had it not been repealed; and

(b) anything made, given, issued or done under that Act after its repeal by virtue of this section has the like effect as it would have had if that Act had not been repealed.

(5) The repeal by this Act of a provision of the Crimes (Confiscation of Profits) Act 1986 does not affect any application made to a court under that provision before its repeal and that application may continue to be dealt with and

S. 157(4A) inserted by No. 80/1998s. 5(1).

S. 157(4B) inserted by No. 80/1998s. 5(1).



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determined, or may be withdrawn, as if this Act had not been passed.

(6) The repeal by this Act of a provision of the Crimes (Confiscation of Profits) Act 1986 does not affect any order made by a court (or any order that by force of that Act is to be taken to be an order made by a court) under that provision before its repeal, or after its repeal on an application to which subsection (5) applies, and that order continues to have effect and may be varied, discharged, set aside or appealed against under that Act as if this Act had not been passed.

(7) The repeal by this Act of a provision of the Crimes (Confiscation of Profits) Act 1986 does not affect any warrant issued, or any interstate forfeiture order or interstate restraining order registered, under that provision before its repeal, or after its repeal on an application to which subsection (5) applies, and that warrant may be executed, or the registration of that order cancelled, under that Act as if this Act had not been passed.

(8) The repeal by this Act of section 15A of the Crimes (Confiscation of Profits) Act 1986 does not affect the existence of the Crime Prevention and Victims' Aid Fund in the Public Account and all money standing to the credit of the Fund immediately before that repeal remains in the Fund and may be dealt with in accordance with this Act.

(9) All money realised after the commencement of section 150(2) under a confiscation order made under the Crimes (Confiscation of Profits) Act 1986 that, if that section had not come into operation, would have been paid into the Crime Prevention and Victims' Aid Fund or the Drug Rehabilitation and Research Fund under



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section 125 or 126 of the Drugs, Poisons and Controlled Substances Act 1981 must be paid into that Fund.

* * * * *

(10A) Item 18 of Schedule 1 to this Act (as inserted in that Schedule by section 33(2) of the Prostitution Control (Amendment) Act 1999) applies with respect to offences against section 123 of this Act of which a person is convicted after the commencement of section 33(2) of that Act, irrespective of when the offence is alleged to have been committed.

(11) The provisions of this section are in addition to, and not in derogation from, the provisions of the Interpretation of Legislation Act 1984.

(12) A reference in this section to the Crimes (Confiscation of Profits) Act 1986 is a reference to that Act as in force immediately before its repeal.

(13) The amendments made to this section by section 5 of the Crimes, Confiscation and Evidence Acts (Amendment) Act 1998 do not affect the rights of the parties that were the subject of the proceeding known as Martin v Cooper and Martin heard in the Magistrates' Court at Melbourne and determined on 7 October 1998.

(14) In this section, a reference to Part 4 does not include Part 4 as substituted by section 49 of the Confiscation Amendment Act 2010.

S. 157(10) repealed by No. 10/2007 s. 5.


S. 157(12) inserted by No. 80/1998s. 5(2).

S. 157(13) inserted by No. 80/1998s. 5(2).

S. 157(14) inserted by No. 68/2010 s. 67(2).



347

158 Confiscation (Amendment) Act 2003—definition of tainted property transitional provision

The definition of tainted property as amended by section 4(5) of the Confiscation (Amendment) Act 2003, in so far as it relates to an offence under section 122 or 123(1), applies only with respect to an offence under section 122 or 123(1) of which a person is convicted after the commencement of section 4(5) of that Act.

159 Confiscation (Amendment) Act 2003—declaration of property interests transitional provision

Sections 19A to 19E apply only in relation to property in respect of which a restraining order is made after the commencement of section 8 of the Confiscation (Amendment) Act 2003.

160 Confiscation (Amendment) Act 2003—freezing orders transitional provision

Part 2A applies with respect to any forfeiture offence, automatic forfeiture offence or civil forfeiture offence irrespective of when the offence is alleged to have been committed.

161 Confiscation (Amendment) Act 2003—tainted property substitution declaration transitional provisions

(1) Division 1A of Part 3 applies with respect to forfeiture offences only if they are alleged to have been committed after the commencement of section 12 of the Confiscation (Amendment) Act 2003.

(2) For the purposes of subsection (1), if an offence is alleged to have been committed between two dates and section 12 of the Confiscation (Amendment) Act 2003 commences on a date between those two dates, the offence is alleged to

S. 158 inserted by No. 63/2003 s. 42.

S. 159 inserted by No. 63/2003 s. 42.

S. 160 inserted by No. 63/2003 s. 42.

S. 161 inserted by No. 63/2003 s. 42.



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have been committed before the commencement of that section.

162 Confiscation (Amendment) Act 2003—disposal orders transitional provision

Part 10, as amended by sections 16 and 17 of the Confiscation (Amendment) Act 2003, applies with respect to any forfeiture offence of which a person is convicted after the commencement of those sections, irrespective of when the offence is alleged to have been committed.

163 Confiscation (Amendment) Act 2003—property seized under other Acts transitional provision

Sections 95A to 95E apply to any property seized under a warrant issued under section 465 of the Crimes Act 1958 or section 81 of the Drugs, Poisons and Controlled Substances Act 1981, irrespective of when the warrant was executed.

164 Confiscation (Amendment) Act 2003—examination orders transitional provision

Section 98(2), as substituted by section 28 of the Confiscation (Amendment) Act 2003, applies only in relation to examination orders for which an application was made after the commencement of section 28 of that Act.

165 Confiscation (Amendment) Act 2003—document requests transitional provisions

(1) Division 6 of Part 13 applies in relation to property in respect of which a restraining order was made, irrespective of when the restraining order was made.

(2) Division 6 of Part 13 applies in relation to property seized under a warrant issued under this Act, section 465 of the Crimes Act 1958 or section 81 of the Drugs, Poisons and Controlled

S. 162 inserted by No. 63/2003 s. 42.

S. 163 inserted by No. 63/2003 s. 42.

S. 164 inserted by No. 63/2003 s. 42.

S. 165 inserted by No. 63/2003 s. 42.



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Substances Act 1981, irrespective of when the warrant was executed.

166 Confiscation (Amendment) Act 2003—Schedule 1 offences transitional provisions

(1) Items 5A and 13A of Schedule 1 apply only with respect to an offence alleged to have been committed after the commencement of section 36 of the Confiscation (Amendment) Act 2003.

(2) Despite the substitution of item 7(j) of Schedule 1 by section 36 of the Confiscation (Amendment) Act 2003, item 7(j), as in force immediately before the commencement of that section, continues to apply in respect of an offence referred to in item 7(j) (as in force immediately before that commencement) which is alleged to have been committed before the commencement of that section.

(3) Item 7 of Schedule 1, as amended by section 36 of the Confiscation (Amendment) Act 2003, applies only with respect to an offence alleged to have been committed after the commencement of that section.

(4) For the purposes of this section, if an offence is alleged to have been committed between two dates and section 36 of the Confiscation (Amendment) Act 2003 commences on a date between those two dates, the offence is alleged to have been committed before the commencement of that section.

167 Confiscation (Amendment) Act 2003—Schedule 2—drug trafficking offences transitional provisions


S. 166 inserted by No. 63/2003 s. 42.

S. 167 inserted by No. 63/2003 s. 42.



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(2) For the purposes of subsection (1), if an offence is alleged to have been committed between two dates and section 37 of the Confiscation (Amendment) Act 2003 commences on a date between those two dates, the offence is alleged to have been committed before the commencement of that section.

168 Confiscation (Amendment) Act 2003—Schedule 2 offences transitional provisions

(1) Despite the substitution of item 2 of Schedule 2 by section 38 of the Confiscation (Amendment) Act 2003, item 2, as in force immediately before the commencement of that section, continues to apply in respect of any offence referred to in item 2 (as in force immediately before that commencement) which is alleged to have been committed before the commencement of that section.


(3) Items 2A, 2B and 2C of Schedule 2 apply only with respect to an offence alleged to have been committed after the commencement of section 38 of the Confiscation (Amendment) Act 2003.


S. 168 inserted by No. 63/2003 s. 42.



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169 Confiscation (Amendment) Act 2003—Schedule 2—money laundering transitional provisions

(1) Despite the amendment of item 3 of Schedule 2 by section 39 of the Confiscation (Amendment) Act 2003, item 3, as in force immediately before the commencement of that section, continues to apply in respect of any offence referred to in item 3 (as in force immediately before that commencement) which is alleged to have been committed before the commencement of that section.



170 Confiscation (Amendment) Act 2003—Schedule 2—attempts transitional provisions

(1) Despite the amendment of item 5 of Schedule 2 by section 40 of the Confiscation (Amendment) Act 2003, item 5, as in force immediately before the commencement of that section, continues to apply in respect of any offence referred to in item 5 (as in force immediately before that commencement) which is alleged to have been committed before the commencement of that section.

S. 169 inserted by No. 63/2003 s. 42.

S. 170 inserted by No. 63/2003 s. 42.



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171 Confiscation (Amendment) Act 2003—Schedule 2—common law offences transitional provisions

(1) Despite the substitution of item 7 of Schedule 2 by section 41 of the Confiscation (Amendment) Act 2003, item 7, as in force immediately before the commencement of that section, continues to apply in respect of any offence referred to in item 7 (as in force immediately before that commencement) which is alleged to have been committed before the commencement of that section.


(3) Items 8 and 9 of Schedule 2 apply only with respect to an offence alleged to have been committed after the commencement of section 41 of the Confiscation (Amendment) Act 2003.

S. 171 inserted by No. 63/2003 s. 42.



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172 Interpretation of Legislation Act 1984

The provisions of sections 158 to 171 are in addition to, and not in derogation from, the provisions of the Interpretation of Legislation Act 1984.

173 Transitional—Crimes (Money Laundering) Act 2003

(1) The definition of tainted property in section 3 of this Act as amended by section 5(3) of the Crimes (Money Laundering) Act 2003, in so far as it relates to an offence under section 194, 195 or 195A of the Crimes Act 1958, applies only with respect to offences alleged to have been committed on or after the commencement of section 5(3) of the Crimes (Money Laundering) Act 2003.

(2) The amendment of section 31M of this Act made by section 5(5) of the Crimes (Money Laundering) Act 2003 applies only to freezing orders notice of which is given to a financial institution on or after the commencement of section 5(5) of that Act.

(3) The amendment of section 116(4) of this Act made by section 5(6) of the Crimes (Money Laundering) Act 2003 applies only to monitoring orders notice of which is given to a financial institution on or after the commencement of section 5(6) of that Act.

S. 172 inserted by No. 63/2003 s. 42.

S. 173 inserted by No. 104/2003 s. 6.



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(4) The amendment of section 118M of this Act made by section 5(8) of the Crimes (Money Laundering) Act 2003 applies only to an information notice given to a financial institution on or after the commencement of section 5(8) of that Act.

(5) Item 18 of Schedule 1 and item 3 of Schedule 2 continue to apply in respect of any offence referred to in the item which is alleged to have been committed before the commencement of section 5(1) of the Crimes (Money Laundering) Act 2003.

(6) For the purposes of this section, if an offence is alleged to have been committed between two dates, one before and one after the commencement of section 5(1) of the Crimes (Money Laundering) Act 2003, the offence is alleged to have been committed before that commencement.

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.

175 Transitional—Justice Legislation (Further Amendment) Act 2006

(1) Section 17 as amended by section 10 of the Justice Legislation (Further Amendment) Act 2006 applies to an application for a restraining order made on or after the commencement of section 10 of that Act.

S. 174 inserted by No. 87/2004 s. 23.

S. 175 inserted by No. 79/2006 s. 14.



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(2) Section 53 as amended by section 11 of the Justice Legislation (Further Amendment) Act 2006 applies to an application made on or after the commencement of section 11 of that Act.

(3) Section 78 as amended by section 12 of the Justice Legislation (Further Amendment) Act 2006 applies to a disposal order made on or after the commencement of section 12 of that Act.

176 Validation of certain exclusion orders—Confiscation Amendment Act 2007

(1) An exclusion order made, or purported to be made, under section 21 and in force, or purportedly in force, immediately before the commencement of section 5(1) of the Confiscation Amendment Act 2007 that would have been validly made if section 21 as amended by section 5(1) of that Act had been in operation at the time the relevant order was made or purported to be made has, and is deemed always to have had, the same force and effect as it would have had if section 21 as amended by section 5(1) of that Act had been in operation at that time.


S. 176 inserted by No. 42/2007 s. 17.



356


(4) An exclusion order made, or purported to be made, under section 50(1) and in force, or purportedly in force, immediately before the commencement of section 10(1) of the Confiscation Amendment Act 2007 that would have been validly made if section 50(1) as amended by section 10(1) of that Act had been in operation at the time the relevant order was made or purported to be made has, and is deemed always to have had, the same force and effect as it would have had if section 50(1) as amended by section 10(1) of that Act had been in operation at that time.




357


(7) Nothing in this section affects the rights of the parties in the proceeding known as Director of Public Prosecutions v. Phan Thi Le (No. 3723 of 2006) in the Supreme Court of Victoria, Court of Appeal.

177 Existing applications for exclusion orders—Confiscation Amendment Act 2007

(1) Despite section 14 of the Interpretation of Legislation Act 1984, any application for an exclusion order made before, on or after 15 February 2007 but not determined before the commencement of the Confiscation Amendment Act 2007 is to be determined—

(a) in the case of an application for an exclusion order to be made under section 21, as if section 21 as amended by section 5(1) of the Confiscation Amendment Act 2007 had been in operation at the time the application was made; and

(b) in the case of an application for an exclusion order to be made under section 22, as if section 22 as amended by section 6(1) of the Confiscation Amendment Act 2007 had

S. 177 inserted by No. 42/2007 s. 17.



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been in operation at the time the application was made; and

(c) in the case of an application for an exclusion order to be made under section 24, as if section 24 as amended by section 8(1) of the Confiscation Amendment Act 2007 had been in operation at the time the application was made; and

(d) in the case of an application for an exclusion order to be made under section 50, as if section 50 as amended by section 10(1) of the Confiscation Amendment Act 2007 had been in operation at the time the application was made; and

(e) in the case of an application for an exclusion order to be made under section 52, as if section 52 as amended by section 11(1) of the Confiscation Amendment Act 2007 had been in operation at the time the application was made; and

(f) in the case of an application for an exclusion order to be made under section 54, as if section 54 as amended by section 12(1) of the Confiscation Amendment Act 2007 had been in operation at the time the application was made.




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178 Sufficient consideration—Confiscation Amendment Act 2007

(1) The definition of sufficient consideration, as inserted by section 4(3) of the Confiscation Amendment Act 2007, applies in respect of an application under section 20, 49, 51 or 53 (as the case requires) made on or after the commencement of section 4(3) of that Act, irrespective of when the offence to which the application relates is alleged or suspected to have been committed.


179 Transitional—Confiscation Amendment Act 2010

(1) Section 3A as inserted by section 5 of the Confiscation Amendment Act 2010 applies to—

(a) a proceeding commenced on or after the commencement of section 5 of that Act; and

(b) a proceeding commenced before the commencement of section 5 of that Act that has not been determined before that commencement.

(2) Section 16 as amended by section 7 of the Confiscation Amendment Act 2010 applies to an application under section 16 that is made on or after the commencement of section 7 of that Act.

(3) Section 19B as amended by section 8 of the Confiscation Amendment Act 2010 applies to any notice issued under section 19A on or after the commencement of section 8 of that Act irrespective of when the restraining order is made.

S. 178 inserted by No. 42/2007 s. 17.

S. 179 inserted by No. 68/2010 s. 68.



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(4) Section 27 as amended by section 15 of the Confiscation Amendment Act 2010 applies to a restraining order, irrespective of when the order was made.

(5) Section 31H(2)(b) as amended by section 16 of the Confiscation Amendment Act 2010 applies to a freezing order made on or after the commencement of section 16 of that Act.

(6) Division 3 of Part 3 as inserted by section 19 of the Confiscation Amendment Act 2010 applies with respect to Schedule 2 offences only if they are alleged to have been committed on or after the commencement of section 19 of that Act.

(7) For the purposes of subsection (6), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 19 of the Confiscation Amendment Act 2010, the offence is alleged to have been committed before that commencement.

(8) Section 62 as amended by section 20 of the Confiscation Amendment Act 2010 applies to a pecuniary penalty order made on or after the commencement of section 20 of that Act.

(9) Section 69A as inserted by section 22 of the Confiscation Amendment Act 2010 applies to a pecuniary penalty order made on or after the commencement of section 22 of that Act.

(10) Section 74 as amended by section 23 of the Confiscation Amendment Act 2010 applies to a pecuniary penalty order made on or after the commencement of section 23 of that Act.

(11) Section 118E as amended by section 25 of the Confiscation Amendment Act 2010 applies in



361

relation to—

(a) property in respect of which a restraining order (including a restraining order made for the purposes of civil forfeiture before the repeal of section 15(1)(c) by section 40 of the Confiscation Amendment Act 2010) or a civil forfeiture restraining order is in force on or after the commencement of section 25 of that Act, irrespective of when the order was made; and

(b) property that is or has been forfeited under this Act, irrespective of when the forfeiture occurs.

(12) Section 118G as amended by section 26 of the Confiscation Amendment Act 2010 applies to information notices issued on or after the commencement of section 26 of that Act.

(13) Section 118H as amended by section 27 of the Confiscation Amendment Act 2010 applies to information notices issued on or after the commencement of section 27 of that Act.

(14) Section 119 as amended by section 28(3) of the Confiscation Amendment Act 2010 applies irrespective of whether the information was communicated to the AUSTRAC CEO before, on or after the commencement of section 28(3) of that Act.

(15) Section 120A as amended by section 29 of the Confiscation Amendment Act 2010 applies in relation to—

(a) property in respect of which a restraining order (including a restraining order made for the purposes of civil forfeiture before the repeal of section 15(1)(c) by section 40 of the Confiscation Amendment Act 2010) or a civil forfeiture restraining order is in force



362

on or after the commencement of section 29 of that Act, irrespective of when that was made; and

(b) property that is or has been forfeited under this Act, irrespective of when the forfeiture occurs.

(16) Sections 133 and 133A as amended by section 30 of the Confiscation Amendment Act 2010 apply to a proceeding on an application under this Act, where the application is made on or after the commencement of section 30 of that Act.

(17) Section 141A as inserted by section 31 of the Confiscation Amendment Act 2010 applies to a scheme entered into on or after the commencement of section 31 of that Act.

(18) Schedule 2 as amended by section 32(1) of the Confiscation Amendment Act 2010 applies to an offence alleged to have been committed on or after the commencement of section 32(1) of that Act.

(19) Schedule 2 as amended by section 32(2) of the Confiscation Amendment Act 2010 applies to an offence alleged to have been committed on or after the commencement of section 32(2) of that Act.

(20) For the purposes of subsections (18) and (19), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 32(1) or 32(2) (as the case requires) of the Confiscation Amendment Act 2010, the offence is alleged to have been committed before that commencement.

180 Regulations dealing with transitional matters

(1) The Governor in Council may make regulations containing provisions of a transitional nature,

S. 180 inserted by No. 68/2010 s. 68.



363

including matters of an application or savings nature, arising as a result of the enactment of the Confiscation Amendment Act 2010, including the repeals and amendments made by that Act.

(2) Regulations made under this section may—

(a) have a retrospective effect to a day on or from the date that the Confiscation Amendment Act 2010 receives the Royal Assent; and

(b) be of limited or general application; and

(c) leave any matter or thing to be decided by a specified person or specified class of persons; and

(d) provide for the exemption of persons or proceedings or a class of persons or proceedings from any of the regulations made under this section.

(3) Regulations made under this section have effect despite anything to the contrary—

(a) in any Act (other than the Confiscation Amendment Act 2010 or the Charter of Human Rights and Responsibilities Act 2006); or

(b) in any subordinate instrument.

181 Confiscation Amendment Act 2010—proceedings for civil forfeiture generally

(1) In this section old civil forfeiture matter means—

S. 181 inserted by No. 68/2010 s. 69.



364

(a) an application under any of the following sections made but not determined before the commencement of Part 3 of the Confiscation Amendment Act 2010—

(i) section 16(2)(a) for a restraining order for the purposes of section 15(1)(c) as in force immediately before its repeal;

(ii) section 20 for an exclusion order under section 24 as in force immediately before its repeal;

(iii) section 37 (as in force immediately before its substitution by section 49 of that Act) for a civil forfeiture order;

(iv) section 53 for an exclusion order under section 54 as in force immediately before its repeal;

(v) section 55 as in force immediately before its amendment by section 52 of that Act;

(b) any of the following orders made and in force immediately before the commencement of Part 3 of the Confiscation Amendment Act 2010—

(i) a restraining order for the purposes of civil forfeiture made under section 18(2) as in force immediately before its repeal;

(ii) an exclusion order under section 24 as in force immediately before its repeal;

(iii) any further order made under section 26 in relation to property restrained for the purposes of civil forfeiture immediately before that commencement;



365

(iv) an order under section 27(4) (as in force immediately before its amendment by section 45(2) of that Act) in relation to a restraining order for the purposes of civil forfeiture;

(v) an order for civil forfeiture under section 38 (as in force immediately before its substitution by section 49 of that Act);

(vi) an exclusion order under section 54(1) as in force immediately before its repeal;

(vii) an order under section 54(2) as in force immediately before its repeal;

(c) any refusal to make a civil forfeiture order under section 38 (as in force immediately before its substitution by section 49 of that Act);

(d) any refusal to make an exclusion order under section 24 or 54(1) as in force immediately before their repeal;

(e) any refusal to make an order under section 54(2) as in force immediately before its repeal.

(2) Despite the commencement of Part 3 of the Confiscation Amendment Act 2010, this Act, as in force immediately before that commencement, continues to apply in respect of any old civil forfeiture matter as if Part 3 of the Confiscation Amendment Act 2010 had not been enacted.

(3) Part 4 as substituted by section 49 of the Confiscation Amendment Act 2010 applies with respect to any proceedings for civil forfeiture commenced on or after the commencement of section 49 of that Act irrespective of whether the



366

property to which the proceeding relates is or was reasonably suspected of being tainted property in relation to a Schedule 2 offence before, on or after that commencement.

182 Confiscation Amendment Act 2010—tainted property and derived property

(1) The definition of derived property as substituted by section 35(4) of the Confiscation Amendment Act 2010 applies with respect to any proceedings for civil forfeiture commenced on or after the commencement of section 35(4) of that Act irrespective of whether the Schedule 2 offence to which the property relates was committed before, on or after that commencement.

(2) If a proceeding for civil forfeiture has commenced before commencement of section 35(4) of the Confiscation Amendment Act 2010, the definition of derived property, as in force immediately before the commencement of section 35(4) of that Act, continues to apply as if that definition had not been substituted by that section.

(3) The definition of tainted property as substituted by section 35(5) of the Confiscation Amendment Act 2010 applies with respect to any proceedings for civil forfeiture commenced on or after the commencement of section 35(5) of that Act irrespective of whether the Schedule 2 offence to which the property relates was committed before, on or after that commencement.

(4) If a proceeding for civil forfeiture has commenced before commencement of section 35(5) of the Confiscation Amendment Act 2010, the definition of tainted property, as in force immediately before the commencement of

S. 182 inserted by No. 68/2010 s. 69.



367

section 35(5) of that Act, continues to apply as if that definition had not been substituted by that section.

183 Confiscation Amendment Act 2010—freezing orders

(1) An application for a freezing order under section 31D(1A) as inserted by section 46 of the Confiscation Amendment Act 2010 may be made on or after the commencement of section 46 of that Act irrespective of whether the Schedule 2 offence to which the property relates was committed before, on or after that commencement.

(2) On and from the commencement of Part 3 of the Confiscation Amendment Act 2010 an application for a civil forfeiture restraining order may be made in relation to money in an account which is subject to a freezing order made and in force immediately before the commencement of that Part.

(3) Any pending application for a freezing order made but not determined before the commencement of Part 3 of the Confiscation Amendment Act 2010 is to be determined under this Act as in force immediately before that commencement.

184 Transitional provisions for Confiscation Amendment Act 2010 do not derogate from Interpretation of Legislation Act 1984

Sections 181 to 183 are in addition to, and not in derogation from, the provisions of the Interpretation of Legislation Act 1984.

S. 183 inserted by No. 68/2010 s. 69.

S. 184 inserted by No. 68/2010 s. 69.



368

185 Sex Work and Other Acts Amendment Act 2011—Schedule 1 offences transitional provision

(1) Clause 17 of Schedule 1, as substituted by section 16 of the Sex Work and Other Acts Amendment Act 2011, applies to an offence alleged to have been committed on or after the commencement of section 16 of that Act.

(2) For the purposes of subsection (1), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 16 of the Sex Work and Other Acts Amendment Act 2011, the offence is alleged to have been committed before that commencement.

186 Sex Work and Other Acts Amendment Act 2011—Schedule 2 offences transitional provision

(1) Clause 2(ba), (bb), (bc) and (bd) of Schedule 2, as inserted by section 17 of the Sex Work and Other Acts Amendment Act 2011, apply to an offence alleged to have been committed on or after the commencement of section 17 of that Act.

(2) For the purposes of subsection (1), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 17 of the Sex Work and Other Acts Amendment Act 2011, the offence is alleged to have been committed before that commencement.

187 Transitional—Independent Broad-based Anti-corruption Commission Act 2011

(1) Any application made by the Director that has not been determined before the commencement day is taken, on and from the commencement day, to be an application made by the IBAC Commissioner.

S. 185 inserted by No. 73/2011 s. 18.

S. 186 inserted by No. 73/2011 s. 18.

S. 186(1) amended by No. 77/2013 s. 14.

S. 187 inserted by No. 82/2012 s. 157.



369

(2) Any monitoring order in force immediately before the commencement day that specifies the Office of Police Integrity as the law enforcement agency to which the information is to be given continues in force, on and from the commencement day, and is taken to specify that the law enforcement agency to which the information is to be given is the IBAC within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011.


commencement day means the day on which section 16 of the Independent Broad-based Anti-corruption Commission Amendment (Investigative Functions) Act 2012 comes into operation;

Director means the Director, Police Integrity under section 7 of the Police Integrity Act 2008 as in force immediately before its repeal;

IBAC Commissioner means the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011.

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

S. 188 inserted by No. 55/2014 s. 47.



370

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.

189 Transitional—Justice Legislation Amendment (Confiscation and Other Matters) Act 2014

(1) An application under section 40F for an unexplained wealth restraining order may be made in relation to serious criminal activity whether that activity occurred before or after the commencement of section 16 of the Justice Legislation Amendment (Confiscation and Other Matters) Act 2014.

(2) An application under section 40F for an unexplained wealth restraining order may be made on the basis that property has not been lawfully acquired whether that property was acquired before or after the commencement of section 16 of the Justice Legislation Amendment (Confiscation and Other Matters) Act 2014.

190 Transitional—Confiscation and Other Matters Amendment Act 2016


the 2016 Act means the Confiscation and Other Matters Amendment Act 2016;

amended provision relating to property obtained with a loan means—

S. 189 inserted by No. 79/2014 s. 42.

S. 190 inserted by No. 27/2016 s. 26.



371

(a) the definition of tainted property in section 3(1) as amended by section 4(1) of the 2016 Act; or

(b) section 7A as amended by section 5(3) of the 2016 Act; or

(c) section 7B as amended by section 6 of the 2016 Act; or

(d) section 40G(1) as amended by section 14 of the 2016 Act—

and as construed by reference to the definition of partly discharged as inserted by section 4(2) of the 2016 Act;

relevant section of the 2016 Act, in relation to an amended provision relating to property obtained with a loan, means the section of the 2016 Act that amended that provision.

(2) An amended provision relating to property obtained with a loan applies with respect to any proceeding under this Act commenced before, on or after the date on which the relevant section of the 2016 Act comes into operation irrespective of—

(a) when the property to which the amended provision applies was purchased; or

(b) when the mortgage, lien, charge, security or other encumbrance to which that property is, or has been, subject was wholly or partly discharged.

191 Transitional provision—Crimes Amendment (Sexual Offences) Act 2016

(1) Despite the amendment of section 7C(a)(iia) by section 35 of the Crimes Amendment (Sexual Offences) Act 2016, section 7C(a)(iia), as in

S. 191 inserted by No. 47/2016 s. 36.



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force immediately before the commencement of section 35, continues to apply in respect of any offence referred to in section 7C(a)(iia) that is alleged to have been committed before the commencement of section 35.

(2) Despite the amendment of clause 2(bb), (bc) and (bd) of Schedule 2 by section 35 of the Crimes Amendment (Sexual Offences) Act 2016, clause 2(bb), (bc) and (bd), as in force immediately before the commencement of section 35, continue to apply in respect of any offence referred to in clause 2(bb), (bc) and (bd) that is alleged to have been committed before the commencement of section 35.



373

Schedules

Schedule 1—Offences—Forfeiture on court order

1. An indictable offence against the law of Victoria.

2. A Schedule 2 offence.

3. An offence against section 34(1)(c) of the Aboriginal Heritage Act 2006 (buying or selling an Aboriginal object).

4. An offence against any of the following provisions of the Casino Control Act 1991:

(a) section 79A(1) (special employee accepting gratuities etc.);

(b) section 120 (wilfully evading fees etc.);

(c) section 153B (forgery etc.).

5. An offence against any of the following provisions of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995:

(a) section 8 (exhibition of RC and X 18+ films);

(b) section 9 (exhibition of unclassified, RC, X 18+, R 18+ and MA 15+ films);

Sch. 1 (Heading) substituted by No. 87/2004 s. 22(2)(x).

Sch. 1 item 2 substituted by No. 87/2004 s. 22(2)(y).

Sch. 1 item 3 substituted by No. 16/2006 s. 198(Sch. 2 item 2).

Sch. 1 item 5(a) amended by No. 6/2005 s. 13(4)(a).

Sch. 1 item 5(b) amended by No. 6/2005 s. 13(4)(b).



374

(c) section 15(1) or (2) (selling unclassified, RC and X 18+ films);

(d) section 23(1) or (2) (possession or copying of unclassified, RC and X 18+ films for purpose of sale or exhibition);

(da) section 23A(4) or (5) (possession or copying of commercial quantity of X 18+ films);

(e) section 24(1) (making objectionable film);

(f) section 25(1) (sale of unclassified or RC publication);

(g) section 31(1) (possession or copying of unclassified or RC publication for purpose of sale);

(h) section 32(1) (producing objectionable publication);

(i) section 34 (sale or demonstration of computer game);

(j) section 36(1) (sale or demonstration of unclassified or RC computer game);

(k) section 45(1) or (2) (possession or copying of unclassified or RC computer game for purpose of sale or demonstration);

(l) section 57(1) (publication or transmission of objectionable material).

5AA. An offence against any of the following provisions of the Domestic Animals Act 1994, where the offence relates to

Sch. 1 item 5(c)amended by Nos 60/1998 s. 16(a), 6/2005 s. 13(4)(c).

Sch. 1 item 5(d) amended by No. 6/2005 s. 13(4)(d).

Sch. 1 item 5(da)inserted by No. 60/1998 s. 16(b), amended by No. 6/2005 s. 13(4)(e).

Sch. 1 item 5AA inserted by No. 75/2011 s. 27(a).



375

the conduct of a breeding domestic animal business within the meaning of that Act—

(a) section 45 (conduct domestic animal business on unregistered premises);

(b) section 63A (non-compliance with Code of Practice), where it is the second or subsequent offence against that section.

5A. An offence against section 54(5) of the Dangerous Goods Act 1985 (selling or otherwise dealing with an unauthorised explosive).

5B. An offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981—

(a) section 56D (producing a psychoactive substance);

(b) section 56E(1) or (2) (selling or supplying a psychoactive substance);

(c) section 56F(1) or (2) (advertising a psychoactive substance).

6. An offence against any of the following provisions of the Fisheries Act 1968:

(a) section 13C(8) (exceeding abalone catch quota);

(b) section 13D(4) (possessing abalone without prescribed abalone docket);

(c) section 17(1), (1A), (1B) or (1C) (unlicensed operation; exceeding bag limit of abalone; failure to comply with abalone processor's or storer's licence; scalloping in Port Phillip Bay);

(d) section 37 (destruction of boundary marks);

(e) section 52 (using prohibited equipment);

(f) section 59 (using poison to take fish);

(g) section 60(1) (use of explosives);

Sch. 1 item 5A inserted by No. 63/2003 s. 36(1).Sch. 1 item 5B inserted by No. 40/2017 s. 25.



376

(h) section 61(1) or (3) (taking undersize fish) where the penalty imposed is 50 penalty units or more;

(i) section 61B (possessing abalone in excess of bag limit) where the penalty imposed is 50 penalty units or more;

(j) section 63(1) (poisoning or polluting waters containing fish);

(k) section 68(3) (failure to comply with notice to cease poisoning waters containing fish).

7. An offence against any of the following provisions of the Fisheries Act 1995:

(a) section 36(1) (unauthorised commercial fishing activities);

(b) section 37(1) (offences relating to commercial abalone equipment);

(c) section 39(1), (2) or (3) (restrictions concerning access licences);

(d) section 40(1) (receipt, consignment etc. of fish);

(e) section 42(1) (offences relating to aquaculture and live fish etc.);

(f) section 53(1) or (4) (failure to comply with licence or permit conditions);

(g) section 66(1) (holder of access licence exceeding permitted amount);

(ga) section 66A(1) (taking fish during quota period in excess of notice specification);

(h) section 67(3) (contravention of regulation or fisheries notice prohibition);

(i) section 68A(1), (2), (4B) or (5) (offences in relation to size and catch limits);

Sch. 1 item 7(ga) inserted by No. 63/2003 s. 36(2).

Sch. 1 item 7(i) amended by No. 63/2003 s. 36(3).



377

(j) section 68B(1) (possession of fish taken from non-Victorian waters in contravention of permitted size or amount);

(k) section 71(1) (unauthorised taking etc. of protected aquatic biota);

(l) section 76 (offences concerning noxious aquatic species);

(la) section 99(1) (failure to keep document in relation to receipt of priority species);

(lb) section 108A(5) (failure to comply with retention notice);

(m) section 112(1) or (2) (use of explosives, poisons, substances or equipment for fishing);

(n) section 113(1) (interference with lawful fishing activities or aquaculture activities);

(o) section 114(3) (contravention of regulation or fisheries notice prohibition);

(p) section 115 (interference with commercial fishing equipment or aquaculture equipment);

(q) section 116(1) (possession or sale of fish taken in contravention of Act or corresponding law);

(r) section 117(1) (use of foreign boat for fishing);

(s) section 118(1) (having foreign boat equipped with commercial fishing equipment);

(t) section 119(1) (blocking passage of fish);

(ta) section 119A (knowingly make false or misleading statements in relation to priority species).

Sch. 1 item 7(j) substituted by No. 63/2003 s. 36(4).

Sch. 1 item 7(la) inserted by No. 63/2003 s. 36(5).

Sch. 1 item 7(lb) inserted by No. 63/2003 s. 36(5).

Sch. 1 item 7(ta) inserted by No. 108/2003 s. 8(1).



378

(u) section 130(4) (failure to comply with order prohibiting person from being on certain boats or in certain places);

(ua) section 130A(5) (failure to comply with court order prohibiting fishing activity or possession of fish or equipment);

(ub) section 130B(6) (failure to comply with court order prohibiting person from being in or on specified waters);

(v) section 139 (taking fish etc. from research station or hatchery on Crown land);

(w) section 147 (improper use of information).

8. An offence against any of the following provisions of the Flora and Fauna Guarantee Act 1988:

(a) section 47(1) (offences relating to protected flora);

(b) section 52(1) (taking, trading in or keeping listed fish).

9. An offence against any of the following provisions of the Forests Act 1958:

(a) section 59(1) (felling etc. tree in protected forest);

(b) section 61 (felling etc. reserved tree);

(c) section 96 (miscellaneous offences);

(d) sections 96A and 96B.

10. An offence against any of the following provisions of the Gambling Regulation Act 2003—

Sch. 1 item 7(ua) inserted by No. 63/2003 s. 36(6).

Sch. 1 item 7(ub) inserted by No. 63/2003 s. 36(6).

Sch. 1 item 9(d) inserted by No. 48/2004 s. 133.

Sch. 1 item 10 substituted by No. 114/2003 s. 12.1.3(Sch. 6 item 3).



379

(a) section 2.2.1 (unauthorised gambling prohibited);

(b) section 2.2.8 (advertising of unauthorised gambling prohibited);

* * * * *

* * * * *

* * * * *

(l) section 3.4.68(1) or (2) (payments to venue operator by manufacturer or supplier of gaming equipment);

(m) section 3.5.28(1), (2), (3) or (4) (inducements, cheating etc.);

(n) section 3.5.31 (extending credit for playing gaming machine);

(o) section 4.7.5(1) or (2) (inducements, cheating etc.);

(p) section 4.7.6 (extending credit etc.);

(q) section 8.2.2(b) (conducting session of bingo games otherwise than in accordance with Act);

Sch. 1 item 10(a) substituted by No. 56/2014 s. 61(1).

Sch. 1 item 10(b) substituted by No. 56/2014 s. 61(1).

Sch. 1 items 10(c)-(i) repealed by No. 56/2014 s. 61(2).

Sch. 1 item 10(j) repealed by No. 52/2009 s. 17.

Sch. 1 item 10(k) repealed by No. 56/2014 s. 61(2).

Sch. 1 item 10(q) amended by No. 56/2010 s. 73.



380

(r) section 10.5.17 (impersonation of inspector or commissioner);

(s) section 10.5.18(1) or (2) (bribery of authorised person).

* * * * *

13A. An offence against any of the following provisions of the National Parks Act 1975:

(a) section 45A(1) (taking fish or fishing bait for sale in marine national park or marine sanctuary);

(b) section 45A(2) (taking fish or fishing bait for purposes other than sale without permit in marine national park or marine sanctuary);

(c) section 45A(3) (growing etc. fish or fishing bait in marine national park or marine sanctuary);

(d) section 45A(4) (being in a prescribed area in charge of prescribed boat or in charge of boat carrying prescribed equipment);

(e) section 45A(5) (possessing or being in charge of boat carrying a priority species).

13B. An offence against any of the following provisions of the Prevention of Cruelty to Animals Act 1986, where the offence relates to the conduct of a breeding domestic animal business within the meaning of the Domestic Animals Act 1994—

(a) section 9 (cruelty);

(b) section 10 (aggravated cruelty).

14. An offence against any of the following provisions of the Racing Act 1958:

Sch. 1 items 11–13 repealed by No. 114/2003 s. 12.1.3 (Sch. 6 item 3).

Sch. 1 item 13A inserted by No. 63/2003 s. 36(7).

Sch. 1 item 13B inserted by No. 75/2011 27(b).



381

(a) section 29 (1A), (1B) or (1C) (receipt of direct financial benefit from profits of race-meeting);

(b) section 55(2) (non-mechanical speed coursing).

15. An offence against any of the following provisions of the Wildlife Act 1975:

(a) section 41(1) or (2) (taking or possessing etc. endangered wildlife) as in force immediately before the commencement of section 14 of the Wildlife (Amendment) Act 1997;

(b) section 42(1) or (2) (taking or possessing etc. notable wildlife) as in force immediately before the commencement of section 14 of the Wildlife (Amendment) Act 1997;

(c) section 43(1) or (2) (taking or possessing etc. protected wildlife) as in force immediately before the commencement of section 14 of the Wildlife (Amendment) Act 1997;

(d) section 43A (possessing unlawfully taken wildlife) as in force immediately before the commencement of section 14 of the Wildlife (Amendment) Act 1997;

(e) section 45 (taking eggs of protected wildlife) as in force immediately before the commencement of section 14 of the Wildlife (Amendment) Act 1997;

(f) section 46 (trapping wild duck etc.) as in force immediately before the commencement of section 14 of the Wildlife (Amendment) Act 1997;

(g) section 47(1) (taking protected wildlife in close season) as in force immediately before the commencement of section 14 of the Wildlife (Amendment) Act 1997;

Sch. 1 item 15(a) amended by No. 43/1998 s. 38(a).

Sch. 1 item 15(b) amended by No. 43/1998 s. 38(b).

Sch. 1 item 15(c) amended by No. 43/1998 s. 38(c).

Sch. 1 item 15(d) amended by No. 43/1998 s. 38(d).

Sch. 1 item 15(e) amended by No. 43/1998 s. 38(e).

Sch. 1 item 15(f) amended by No. 43/1998 s. 38(f).

Sch. 1 item 15(g) amended by No. 43/1998 s. 38(g).



382

(h) section 48(1) (setting dog on wildlife not being game) as in force immediately before the commencement of section 14 of the Wildlife (Amendment) Act 1997;

(ha) section 41 (hunting, taking or destroying endangered wildlife);

(hb) section 42 (hunting, taking or destroying notable wildlife);

(hc) section 43 (hunting, taking or destroying protected wildlife);

(hd) section 45 (acquiring etc. endangered wildlife);

(he) section 46 (acquiring etc. notable wildlife);

(hf) section 47 (acquiring etc. protected wildlife);

(hg) section 47D (wildlife unlawfully taken);

(i) section 49(2) (contravening Order prohibiting possession etc. of wildlife);

(j) section 50(1) (importing or exporting wildlife without permit);

Sch. 1 item 15(h) amended by No. 43/1998 s. 38(h).

Sch. 1 item 15(ha) inserted by No. 43/1998 s. 38(i).

Sch. 1 item 15(hb) inserted by No. 43/1998 s. 38(i).

Sch. 1 item 15(hc) inserted by No. 43/1998 s. 38(i).

Sch. 1 item 15(hd) inserted by No. 43/1998 s. 38(i).

Sch. 1 item 15(he) inserted by No. 43/1998 s. 38(i).

Sch. 1 item 15(hf) inserted by No. 43/1998 s. 38(i).

Sch. 1 item 15(hg) inserted by No. 43/1998 s. 38(i).



383

(k) section 52 (release of wildlife and animals from captivity or confinement);

(l) section 53 (use of prohibited equipment);

(m) section 54(1) (killing etc. wildlife by poison);

(n) section 55 (using bird-lime etc.);

(o) section 56(1) (use or possession of punt gun);

(p) section 58 (molesting etc. protected wildlife during close season);

(q) section 60A(2) (failure to comply with demand to produce firearms licence or permit);

(r) section 73(1) (conducting unlicensed animal exhibition);

(s) section 74(1) (unlicensed keeping of zoo);

(t) section 74E(1) (contravention of licence conditions etc.);

(u) section 76(3) (failure to release whale);

(v) section 77(1) (action to be taken with respect to killing or taking of whale);

(w) section 80 (breach of permit condition).

* * * * *

17. An offence against any of the following provisions of the Sex Work Act 1994—

(a) section 17(1) (publishing or causing to be published advertisement for sex work services);

(b) section 17(2) (causing advertisement for sex work services to be broadcast or televised);

Sch. 1 item 16 inserted by No. 43/1998 s. 38(j), repealed by No. 47/2016 s. 35(4).

Sch. 1 item 17 inserted by No. 44/1999 s. 33(2), amended by No. 63/2010 s. 81(Sch. item 2.1), substituted by No. 73/2011 s. 16.



384

(c) section 17(3) (publishing or causing to be published statement to induce persons to seek employment in sex work);

(d) section 17(4) (advertising as provider of massage services);

(e) section 22(1A) (sex work service providers to be licensed);

(f) section 57(1) (licensee carrying on business with unlicensed partner).

18. An offence against section 123 of this Act (possession etc. of property suspected of being proceeds of crime), as in force immediately before its repeal by section 5(1) of the Crimes (Money Laundering) Act 2003.

19. An offence against section 195 of the Crimes Act 1958.

Sch. 1 item 18 inserted by No. 44/1999 s. 33(2), amended by No. 104/2003 s. 5(9).

Sch. 1 item 19 inserted by No. 104/2003 s. 5(10).



385

Schedule 2—Offences—Automatic forfeiture and civil forfeiture

1. An offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981:

(a) section 71 (trafficking in a quantity of a drug or drugs of dependence that is not less than the large commercial quantity applicable to that drug or those drugs);

(ab) section 71AA (trafficking in a quantity of a drug or drugs of dependence that is not less than the commercial quantity applicable to that drug or those drugs);

(ac) section 71AB(1) (trafficking in a drug of dependence to a child) where—

(i) the drug of dependence is a drug specified in Part 3 of Schedule Eleven to that Act; and

(ii) the quantity of the drug of dependence trafficked is not less than the automatic forfeiture quantity specified in column 2B of Part 3 of Schedule Eleven to that Act applicable to that drug;

(aca) section 71AB(2) (trafficking in a drug of dependence to a child at a school or in a public place within 500 metres of a school) where—


(ii) the quantity of the drug of dependence trafficked is not less than the automatic forfeiture quantity specified in column 2B of

Sch. 2 (Heading) substituted by No. 87/2004 s. 22(2)(z).

Sch. 2 cl. 1(a) substituted by No. 61/2001 s. 11(1)(a).

Sch. 2 cl. 1(ab) inserted by No. 61/2001 s. 11(1)(a).

Sch. 2 cl. 1(ac) inserted by No. 63/2003 s. 37(1), amended by No. 2/2016 s. 17(1)(a).

Sch. 2 cl. 1(aca) inserted by No. 2/2016 s. 17(1)(b).



386

Part 3 of Schedule Eleven to that Act applicable to that drug;

(ad) section 71AC(1) (trafficking in a drug of dependence) where—



(ada) section 71AC(2) (trafficking in a drug of dependence at a school or in a public place within 500 metres of a school) where—



(b) section 72 (cultivation of a narcotic plant in a quantity of a drug of dependence, being a narcotic plant, that is not less than the large commercial quantity applicable to that narcotic plant);

(ba) section 72A (cultivation of a narcotic plant in a quantity of a drug of dependence, being a narcotic plant, that is not less than the commercial quantity applicable to that narcotic plant);

(c) section 79(1) or 80(3)(a) (conspiracy) in circumstances where the conspiracy is to commit an offence in the circumstances referred to in paragraph (a), (ab), (ac), (aca), (ad), (ada), (b) or (ba);

Sch. 2 cl. 1(ad) inserted by No. 63/2003 s. 37(1), amended by No. 2/2016 s. 17(2)(a).

Sch. 2 cl. 1(ada) inserted by No. 2/2016 s. 17(2)(b).

Sch. 2 cl. 1(b) substituted by No. 61/2001 s. 11(1)(b).

Sch. 2 cl. 1(ba) inserted by No. 61/2001 s. 11(1)(b).

Sch. 2 cl. 1(c) amended by Nos 61/2001 s. 11(1)(c), 63/2003 s. 37(2)(a)(b), 2/2016 s. 17(3)(a).



387

(d) section 80(1) (inciting) where the offence that is incited is an offence referred to in paragraph (a), (ab), (ac), (aca), (ad), (ada), (b) or (ba), committed in the circumstances referred to in those paragraphs;

(e) section 80(3)(b) (aiding, abetting etc. an offence outside Victoria) where the offence that is aided, abetted, counselled or procured is an offence committed in the circumstances referred to in paragraph (a), (ab), (ac), (aca), (ad), (ada), (b) or (ba) under a law in force in a place outside Victoria that is a corresponding law in relation to section 71, 71AA, 71AB, 71AC, 72 or 72A, as the case requires.

1A. An offence against any of the following provisions of the Drugs, Poisons and Controlled Substances Act 1981 as in force immediately before the commencement of the Drugs, Poisons and Controlled Substances (Amendment) Act 2001—

(a) section 71(1) (trafficking in a drug of dependence) in circumstances where the offence is committed in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that drug of dependence;

(b) section 72(1) (cultivation of narcotic plants) in circumstances where the offence is committed in relation to a quantity of a drug of dependence, being a narcotic plant, that is not less than the commercial quantity applicable to that narcotic plant;

(c) section 79(1) or 80(3)(a) (conspiracy) in circumstances where the conspiracy is to commit an offence referred to in paragraph (a) or (b);

Sch. 2 cl. 1(d) amended by Nos 61/2001 s. 11(1)(d)(i)(ii), 63/2003 s. 37(3)(a)–(c), substituted by No. 79/2014 s. 61(2), amended by No. 2/2016 s. 17(3)(b).

Sch. 2 cl. 1(e) inserted by No. 79/2014 s. 61(2), amended by No. 2/2016 s. 17(3)(c).

Sch. 2 cl. 1A inserted by No. 35/2002 s. 28(Sch. item 2.1).



388

(d) section 80(1) or 80(3)(b) (aiding and abetting etc.) in circumstances where the offence that is aided, abetted, counselled, procured, solicited or incited is an offence referred to in paragraph (a) or (b) or an offence committed in the circumstances referred to in paragraph (a) or (b) under a law in force in a place outside Victoria that is a corresponding law in relation to section 71(1) or 72(1), as the case requires.

2. An offence against any of the following provisions of the Crimes Act 1958:

(a) section 27 (extortion with threat to kill) where—

(i) only one offence is charged and the demand made is $50 000 or more; or

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the combined demands made are $75 000 or more;

(b) section 28 (extortion with threat to destroy property) where—



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

(i) only one offence is charged and the value of the commercial sexual services provided is $50 000 or more; or

Sch. 2 cl. 2 substituted by No. 63/2003 s. 38.

Sch. 2 cl. 2(ba) inserted by No. 73/2011 s. 17, substituted by No. 47/2016 s. 35(5).



389

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the combined value of the commercial sexual services provided is $75 000 or more;

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



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



(bb) section 53E(1) (aggravated sexual servitude) where—


Sch. 2 cl. 2(bab) inserted by No. 47/2016 s. 35(5).

Sch. 2 cl. 2(bac) inserted by No. 47/2016 s. 35(5).

Sch. 2 cl. 2(bb) inserted by No. 73/2011 s. 17, amended by No. 47/2016 s. 35(6).



390


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

(i) only one offence is charged and the value of the commercial sexual services to which the deception relates is $50 000 or more; or

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the combined value of the commercial sexual services to which the deceptions relate is $75 000 or more;

(bd) section 53G(1) (aggravated deceptive recruiting for commercial sexual services) where—

(i) only one offence is charged and the value of the commercial sexual services to which the deception relates is $50 000 or more; or

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the combined value of the commercial sexual services to which the deceptions relate is $75 000 or more;

(c) section 74 (theft) where—

(i) only one offence is charged and the value of the property in respect of which the offence is committed is $50 000 or more; or

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or

Sch. 2 cl. 2(bc) inserted by No. 73/2011 s. 17, amended by No. 47/2016 s. 35(7).

Sch. 2 cl. 2(bd) inserted by No. 73/2011 s. 17, amended by No. 47/2016 s. 35(8).



391

similar character and the value of the property in respect of which the offences are committed is $75 000 or more;

(d) section 75 (robbery) where—


(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the value of the property in respect of which the offences are committed is $75 000 or more;

(e) section 75A (armed robbery) where—



(f) section 81(1) (obtaining property by deception) where—





392

(g) section 82(1) (obtaining financial advantage by deception) where—

(i) only one offence is charged and the value of the financial advantage obtained is $50 000 or more; or

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the value of the financial advantage obtained is $75 000 or more;

(h) section 87 (blackmail) where—



(i) section 88 (handling stolen goods) where—

(i) only one offence is charged and the value of the goods in respect of which the offence is committed is $50 000 or more; or

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the value of the goods in respect of which the offences are committed is $75 000 or more;

(j) section 176 (receipt or solicitation of secret commission by an agent) where—

(i) only one offence is charged and the valuable consideration in respect of which the offence is committed is $50 000 or more; or



393

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the valuable consideration in respect of which the offences are committed is $75 000 or more;

(k) section 178 (giving or receiving false or misleading receipt or account with intent to defraud or deceive principal) where—

(i) only one offence is charged and the amount intended to be defrauded is $50 000 or more; or

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the combined amounts intended to be defrauded are $75 000 or more;

(l) section 179 (gift or receipt of secret commission in return for advice) where—


(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the valuable consideration in respect of which the offences are committed is $75 000 or more;

(m) section 180 (secret commission to trustee in return for substituted appointment) where—


(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or



394

similar character and the valuable consideration in respect of which the offences are committed is $75 000 or more;

(n) section 191 (fraudulently inducing persons to invest money) where—

(i) only one offence is charged and the value of the property (including any profit) in respect of which the offence is committed is $50 000 or more; or

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the value of the property (including any profit) in respect of which the offences are committed is $75 000 or more;

(o) section 321(1) where the conspiracy is to commit an offence in the circumstances referred to in paragraphs (a) to (n).

2A. An offence against any of the following provisions of the Sex Work Act 1994:

(a) section 6(1) (receiving payment for sexual services provided by a child) where—

(i) only one offence is charged and the value of the payment received is $50 000 or more; or

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the combined value of the payments received is $75 000 or more;

(b) section 7(1) (agreement for provision of sexual services by a child) where—

(i) only one offence is charged and the value of the agreed payment is $50 000 or more; or

Sch. 2 cl. 2A inserted by No. 63/2003 s. 38, amended by No. 63/2010 s. 81(Sch. item 2.2(a)).



395

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the combined value of the agreed payments is $75 000 or more;

(c) section 7(1) (agreement for provision of sexual services by a child) where—

(i) only one offence is charged and the provision of sexual services is in exchange for a quantity of a drug of dependence which is—

(A) in the case of a drug of dependence specified in Part 3 of Schedule Eleven to the Drugs, Poisons and Controlled Substances Act 1981, not less than the automatic forfeiture quantity specified in column 2B of Part 3 of that Schedule to that Act applicable to that drug; or

(B) in the case of any other drug of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981, not less than the commercial quantity applicable to that drug; or

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the provision of sexual services is in exchange for a combined quantity of drugs of dependence which is—

(A) in the case of a drug of dependence or drugs of dependence specified in Part 3 of Schedule Eleven to the Drugs, Poisons and Controlled Substances Act 1981, not less than the automatic forfeiture quantity specified in column 2B of Part 3



396

of that Schedule to that Act applicable to that drug or those drugs; or

(B) in the case of any other drug of dependence or drugs of dependence within the meaning of the Drugs, Poisons and Controlled Substances Act 1981, not less than the commercial quantity applicable to that drug or those drugs;

(d) section 22(1) (carrying on business as a sex work service provider without licence or in breach of licence) where—

(i) only one offence is charged and $50 000 or more is received by the business; or

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and $75 000 or more is received by the business;

(e) section 22(3) (assisting in the carrying on of a sex work service providing business without licence or in breach of licence) where—

(i) only one offence is charged and $50 000 or more is received by the business; or

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and $75 000 or more is received by the business.

Sch. 2 cl. 2A(d) amended by No. 63/2010 s. 81(Sch. item 2.2(b)).

Sch. 2 cl. 2A(e) amended by No. 63/2010 s. 81(Sch. item 2.2(b)).



397

2B. An offence against any of the following provisions of the Casino Control Act 1991:

(a) section 153A(2) (bribery by a key official within the meaning of that Act) where—

(i) only one offence is charged and the value of the money, property or value of any kind in respect of which the offence is committed is $50 000 or more; or

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the value of the money, property or value of any kind in respect of which the offences are committed is $75 000 or more;

(b) section 153A(3) (bribery of a key official within the meaning of that Act) where—

(i) only one offence is charged and the value of the money, property or value of any kind in respect of which the offence is committed is $50 000 or more; or

(ii) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the value of the money, property or value of any kind in respect of which the offences are committed is $75 000 or more.

* * * * *

3. An offence against section 122(1) of the Confiscation Act 1997 (money laundering) where the money or other

Sch. 2 cl. 2B inserted by No. 63/2003 s. 38.

Sch. 2 cl. 2C inserted by No. 63/2003 s. 38, repealed by No. 45/2004 s. 41(a).

Sch. 2 cl. 3 amended by Nos 63/2003 s. 39, 104/2003 s. 5(11).



398

property is proceeds of an offence committed in the circumstances referred to in item 1, 1A, 2, 2A, 2B, 2C, 8 or 9, as in force immediately before its repeal by section 5(1) of the Crimes (Money Laundering) Act 2003.

3A. An offence against section 194(1), (2) or (3) of the Crimes Act 1958 where—

(a) only one offence against section 194(1), (2) or (3) of the Crimes Act 1958 is charged and the value of the property dealt with is $50 000 or more; or

(b) more than one offence against section 194(1), (2) or (3) of the Crimes Act 1958 is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the value of the property dealt with is $75 000 or more.

4. An offence of—

(a) conspiracy to commit; or

(b) being involved in the commission of—

an offence referred to in item 3.Note

Subdivision (1) of Division 1 of Part II of the Crimes Act 1958 deals with complicity in the commission of offences.

4A. An offence of conspiracy to commit an offence referred to in item 10 in the circumstances referred to in that item.

5. An offence of attempting to commit any offence in the circumstances referred to in item 1, 1A, 2, 2A, 2B, 2C (as in force immediately before its repeal by section 41(a)

Sch. 2 cl. 3A inserted by No. 104/2003 s. 5(12), amended by Nos 45/2004 s. 41(b), 69/2004 s. 59(a), 68/2010 s. 32(1).

Sch. 2 cl. 4(b) substituted by No. 47/2016 s. 35(9).

Note to Sch. 2 cl. 4 inserted by No. 47/2016 s. 35(10).

Sch. 2 cl. 4A inserted by No. 69/2004 s. 59(b).

Sch. 2 cl. 5 amended by Nos 63/2003 s. 40, 45/2004 s. 41(b), 69/2004 s. 59(a).



399

of the Racing and Gaming Acts (Amendment) Act 2004), 3, 8, 9 or 10.

6. A continuing criminal enterprise offence within the meaning of Part 2B of the Sentencing Act 1991 for which the offender is liable to be sentenced under that Part as a continuing criminal enterprise offender.

7. The common law offence of conspiracy to defraud where—

(a) only one offence is charged and the value of the property, financial advantage or economic loss in respect of which the offence is committed is $50 000 or more; or

(b) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the value of the property, financial advantage or economic loss in respect of which the offences are committed is $75 000 or more.

8. The common law offence of misconduct in public office where—

(a) only one offence is charged and the value of the property in respect of which the offence is committed is $50 000 or more; or

(b) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the value of the property in respect of which the offences are committed is $75 000 or more.

9. The common law offence of bribery of a public official where—

Sch. 2 cl. 7 substituted by No. 63/2003 s. 41.

Sch. 2 cl. 8 inserted by No. 63/2003 s. 41.

Sch. 2 cl. 9 inserted by No. 63/2003 s. 41.



400

(a) only one offence is charged and the value of the property in respect of which the offence is committed is $50 000 or more; or

(b) more than one offence is charged and the offences are founded on the same facts or form or are part of a series of offences of the same or similar character and the value of the property in respect of which the offences are committed is $75 000 or more.

10. An offence against section 111A, 111B or 111C of the Fisheries Act 1995 where the quantity of fish in respect of which the offence is committed is not less than 5 times the commercial quantity (within the meaning of that Act).

* * * * *

═══════════════

Sch. 2 cl. 10 inserted by No. 108/2003 s. 8(2), substituted by No. 68/2010 s. 32(2).Sch. 3 amended by Nos 61/2001 s. 11(2)(a)–(d), 35/2002 s. 28(Sch. item 2.2), repealed by No. 87/2004 s. 22(3).



401

Endnotes1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 13 November 1997

Legislative Council: 4 December 1997

The long title for the Bill for this Act was "A Bill to provide for the forfeiture of the proceeds of crime and other property in certain circumstances, to amend the Sentencing Act 1991, to repeal the Crimes (Confiscation of Profits) Act 1986 and for other purposes."

Constitution Act 1975:

Section 85(5) statement:

Legislative Assembly: 13 November 1997


Absolute majorities:

Legislative Assembly: 3 December 1997


The Confiscation Act 1997 was assented to on 23 December 1997 and came into operation as follows:

Part 1 (sections 1–13) on 23 December 1997: section 2(1); rest of Act on 1 July 1998: Government Gazette 25 June 1998 page 1561.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.



402

http://www.legislation.vic.gov.au/

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).

• Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).

• Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).

• Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act. See section 36(3)(3D)(3E).



403

2 Table of AmendmentsThis publication incorporates amendments made to the Confiscation Act 1997 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Miscellaneous Acts (Omnibus No. 1) Act 1998, No. 43/1998Assent Date: 26.5.98Commencement Date: Ss 7–39 on 26.5.98: s. 2(1)Current State: This information relates only to the provision/s

amending the Confiscation Act 1997

Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 1998, No. 60/1998

Assent Date: 27.10.98Commencement Date: S. 16 on 27.10.98: s. 2(1)Current State: This information relates only to the provision/s


Crimes, Confiscation and Evidence Acts (Amendment) Act 1998, No. 80/1998Assent Date: 13.11.98Commencement Date: Pt 3 (s. 5) on 1.7.98: s. 2(2)Current State: This information relates only to the provision/s


Transfer of Land (Single Register) Act 1998, No. 85/1998Assent Date: 17.11.98Commencement Date: S. 24(Sch. item 11) on 1.1.99: s. 2(3)Current State: This information relates only to the provision/s


Prostitution Control (Amendment) Act 1999, No. 44/1999Assent Date: 8.6.99Commencement Date: S. 33 on 8.6.99: s. 2(1)Current State: This information relates only to the provision/s


Victims of Crime Assistance (Amendment) Act 2000, No. 54/2000Assent Date: 12.9.00Commencement Date: S. 25(2) on 1.1.01: s. 2(2)Current State: This information relates only to the provision/s


Statute Law Revision Act 2000, No. 74/2000Assent Date: 21.11.00Commencement Date: S. 3(Sch. 1 item 25) on 22.11.00: s. 2(1)Current State: This information relates only to the provision/s




404

Statute Law Amendment (Authorised Deposit-taking Institutions) Act 2001, No. 11/2001

Assent Date: 8.5.01Commencement Date: S. 3(Sch. item 13) on 1.6.01: s. 2(2)Current State: This information relates only to the provision/s


Corporations (Consequential Amendments) Act 2001, No. 44/2001Assent Date: 27.6.01Commencement Date: S. 3(Sch. item 21) on 15.7.01: s. 2Current State: This information relates only to the provision/s


Drugs, Poisons and Controlled Substances (Amendment) Act 2001, No. 61/2001Assent Date: 23.10.01Commencement Date: S. 11 on 1.1.02: s. 2(2)Current State: This information relates only to the provision/s


Criminal Justice Legislation (Miscellaneous Amendments) Act 2002, No. 35/2002Assent Date: 18.6.02Commencement Date: S. 28(Sch. item 2) on 19.6.02: s. 2(1)Current State: This information relates only to the provision/s


Confiscation (Amendment) Act 2003, No. 63/2003Assent Date: 30.9.03Commencement Date: Ss 4–42 on 1.12.03: s. 2(2)Current State: This information relates only to the provision/s


Crimes (Money Laundering) Act 2003, No. 104/2003Assent Date: 9.12.03Commencement Date: Ss 5, 6 on 1.1.04: s. 2(3)Current State: This information relates only to the provision/s


Fisheries (Further Amendment) Act 2003, No. 108/2003Assent Date: 9.12.03Commencement Date: S. 8 on 10.12.03: s. 2(1)Current State: This information relates only to the provision/s


Gambling Regulation Act 2003, No. 114/2003Assent Date: 16.12.03Commencement Date: S. 12.1.3(Sch. 6 item 3) on 1.7.04: Government

Gazette 1.7.04 p. 1843Current State: This information relates only to the provision/s

amending the Confiscation 1997



405

Racing and Gaming Acts (Amendment) Act 2004, No. 45/2004Assent Date: 16.6.04Commencement Date: S. 41 on 1.7.04: s. 2(3)Current State: This information relates only to the provision/s


Sustainable Forests (Timber) Act 2004, No. 48/2004Assent Date: 16.6.04Commencement Date: S. 133 on 17.6.04: s. 2(1)Current State: This information relates only to the provision/s


Primary Industries Legislation (Further Miscellaneous Amendments) Act 2004, No. 69/2004



Major Crime Legislation (Seizure of Assets) Act 2004, No. 87/2004Assent Date: 23.11.04Commencement Date: Ss 4–23 on 1.1.05: s. 2(2)Current State: This information relates only to the provision/s


Public Administration Act 2004, No. 108/2004Assent Date: 21.12.04Commencement Date: S. 117(1)(Sch. 3 item 38) on 5.4.05: Government



Classification (Publications, Films and Computer Games) (Enforcement) (Amendment) Act 2005, No. 6/2005

Assent Date: 27.4.05Commencement Date: S. 13(4) on 26.5.05: s. 2(2)Current State: This information relates only to the provision/s


Legal Profession (Consequential Amendments) Act 2005, No. 18/2005Assent Date: 24.5.05Commencement Date: S. 18(Sch. 1 item 17) on 12.12.05: Government



Aboriginal Heritage Act 2006, No. 16/2006Assent Date: 9.5.06Commencement Date: S. 198(Sch. 2 item 2) on 28.5.07: Government Gazette

24.5.07 p. 921Current State: This information relates only to the provision/s




406

Justice Legislation (Further Amendment) Act 2006, No. 79/2006Assent Date: 10.10.06Commencement Date: Ss 10–14, 86 on 11.10.06: s. 2(1)Current State: This information relates only to the provision/s


Drugs, Poisons and Controlled Substances Amendment (Repeal of Part X) Act 2007, No. 10/2007



Confiscation Amendment Act 2007, No. 42/2007Assent Date: 25.9.07Commencement Date: 26.9.07: s. 2Current State: All of Act in operation

Relationships Act 2008, No. 12/2008Assent Date: 15.4.08Commencement Date: S. 73(1)(Sch. 1 item 7) on 1.12.08: s. 2(2)Current State: This information relates only to the provision/s


Police Integrity Act 2008, No. 34/2008Assent Date: 1.7.08Commencement Date: S. 143(Sch. 2 item 2) on 5.12.08: Special Gazette

(No. 340) 4.12.08 p. 1Current State: This information relates only to the provision/s


Racing Legislation Amendment (Racing Integrity Assurance) Act 2009,No. 52/2009

Assent Date: 8.9.09Commencement Date: S. 17 on 15.10.09: Government Gazette 15.10.09

p. 2637Current State: This information relates only to the provision/s


Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009

Assent Date: 24.11.09Commencement Date: S. 97(Sch. item 23) on 1.1.10: Government Gazette



Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009

Assent Date: 24.11.09Commencement Date: S. 54(Sch. Pt 1 item 9) on 1.1.10: s. 2(2)Current State: This information relates only to the provision/s




407

Gambling Regulation Amendment (Licensing) Act 2010, No. 56/2010Assent Date: 14.9.10Commencement Date: S. 73 on 15.9.10: Special Gazette (No. 372) 14.9.10



Consumer Affairs Legislation (Reform) Act 2010, No. 63/2010Assent Date: 28.9.10Commencement Date: S. 81(Sch. item 2) on 1.11.10: s. 2(2)Current State: This information relates only to the provision/s


Confiscation Amendment Act 2010, No. 68/2010 (as amended by Nos 73/2011, 81/2011)

Assent Date: 12.10.10Commencement Date: Ss 4(1)(3), 5, 7, 14(1)(3), 15, 20–23, 28, 30, 32, 33,

67–69 on 1.11.10: Government Gazette 28.10.10 p. 2583; ss 9–11 never proclaimed, repealed by No. 73/2011 s. 20; ss 4(2)(4), 6, 8, 12, 13, 14(2), 16–19, 24–27, 29, 31, 34–66 on 1.4.12: s. 2(2)

Current State: This information relates only to the provision/s amending the Confiscation Act 1997

Personal Property Securities (Statute Law Revision and Implementation) Act 2010, No. 74/2010

Assent Date: 19.10.10Commencement Date: S. 37(Sch. item 1) on 30.1.12: Special Gazette



Statute Law Revision Act 2011, No. 29/2011Assent Date: 21.6.11Commencement Date: S. 3(Sch. 1 item 15) on 22.6.11: s. 2(1)Current State: This information relates only to the provision/s


Sex Work and Other Acts Amendment Act 2011, No. 73/2011Assent Date: 6.12.11Commencement Date: Ss 16–18 on 1.3.12: Special Gazette (No. 54) 28.2.12



Domestic Animals Amendment (Puppy Farm Enforcement and Other Matters) Act 2011, No. 75/2011

Assent Date: 13.12.11Commencement Date: S. 27 on 1.1.12: Special Gazette (No. 423) 21.12.11





408

Associations Incorporation Reform Act 2012, No. 20/2012Assent Date: 1.5.12Commencement Date: S. 226(Sch. 5 item 5) on 26.11.12: Special Gazette



Integrity and Accountability Legislation Amendment Act 2012, No. 82/2012Assent Date: 18.12.12Commencement Date: Ss 156, 157 on 10.2.13: Special Gazette (No. 32)



Justice Legislation Amendment (Miscellaneous) Act 2013, No. 77/2013Assent Date: 17.12.13Commencement Date: Ss 3–14 on 18.12.13: s. 2(1)Current State: This information relates only to the provision/s


Legal Profession Uniform Law Application Act 2014, No. 17/2014Assent Date: 25.3.14Commencement Date: S. 160(Sch. 2 item 17) on 1.7.15: Special Gazette (No.

151) 16.6.15 p. 1Current State: This information relates only to the provision/s


Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014

Assent Date: 3.6.14Commencement Date: S. 10(Sch. item 25) on 1.7.14: Special Gazette



Criminal Organisations Control and Other Acts Amendment Act 2014, No. 55/2014

Assent Date: 26.8.14Commencement Date: Ss 3–16, 54–59 on 27.8.14: s. 2(1); ss 17–47 on

1.10.14: Special Gazette (No. 330) 23.9.14 p. 1Current State: This information relates only to the provision/s


Gambling and Liquor Legislation Amendment (Modernisation) Act 2014, No. 56/2014

Assent Date: 26.8.14Commencement Date: S. 61 on 1.7.15; s. 2(2)Current State: This information relates only to the provision/s




409

Justice Legislation Amendment (Confiscation and Other Matters) Act 2014, No. 79/2014

Assent Date: 21.10.14Commencement Date: S. 61(1) on 1.11.14: s. 2(4); s. 61(2) on 1.11.14:

s. 2(5); ss 3–42, 45–47 on 2.11.14: Special Gazette (No. 400) 29.10.14 p. 2; ss 43, 44 on 1.7.15: s. 2(7)


Justice Legislation Amendment Act 2015, No. 20/2015Assent Date: 16.6.15Commencement Date: Ss 3–7 on 17.6.15: s. 2(3)Current State: This information relates only to the provision/s


Crimes Amendment (Child Pornography and Other Matters) Act 2015, No. 42/2015



Drugs, Poisons and Controlled Substances Amendment Act 2016, No. 2/2016Assent Date: 16.2.16Commencement Date: S. 17 on 20.10.16: s. 2(2)Current State: This information relates only to the provision/s


Confiscation and Other Matters Amendment Act 2016, No. 27/2016Assent Date: 31.5.16Commencement Date: Ss 4–6, 9, 13–16, 18, 26 on 1.6.16: s. 2(1); ss 3, 7, 8,

10–12, 17, 19–25 on 1.9.16: Special Gazette (No. 270) 30.8.16 p. 1


Crimes Amendment (Sexual Offences) Act 2016, No. 47/2016Assent Date: 6.9.16Commencement Date: Ss 35, 36 on 1.7.17: s. 2(2)Current State: This information relates only to the provision/s


Family Violence Protection Amendment (Information Sharing) Act 2017, No. 23/2017

Assent Date: 14.6.17Commencement Date: S. 34 on 26.2.18: Special Gazette (No. 40) 6.2.18 p. 1Current State: This information relates only to the provision/s




410

Justice Legislation Amendment (Court Security, Juries and Other Matters) Act 2017, No. 38/2017

Assent Date: 29.8.17Commencement Date: S. 76 on 30.8.17: s. 2(1); s. 43 on 1.5.18: s. 2(4)Current State: This information relates only to the provision/s


Drugs, Poisons and Controlled Substances Miscellaneous Amendment Act 2017, No. 40/2017

Assent Date: 12.9.17Commencement Date: Ss 24, 25 on 1.11.17: s. 2(2)Current State: This information relates only to the provision/s


–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––



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3 Amendments Not in OperationThis publication does not include amendments made to the Confiscation Act 1997 by the following Act/s.

––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Oaths and Affirmations Act 2018, No. 6/2018

Assent Date: 27.2.18Commencement Date: S. 68(Sch. 2 item 26) not yet proclaimedCurrent State: This information relates only to the provision/s


–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

At the date of this publication, the following provisions amending the Confiscation Act 1997 were Not in Operation:

Amending Act/s:

Oaths and Affirmations Act 2018, No. 6/2018

Schedule 2—Further consequential amendments

26 Confiscation Act 1997

26.1 In section 18(1)(c), after "sworn" insert "or affirmed".

26.2 In section 31D(3), after "sworn" (where twice occurring) insert "or affirmed".

26.3 In section 31D(4)(b), after "sworn" insert "or affirmed".

26.4 In section 31E(2), for "whether sworn or unsworn" substitute "even if the affidavit is not sworn or affirmed".

26.5 In sections 31E(3), 31F(1)(b)(ii), (1A)(b)(ii) and (1B)(b)(ii) and 81(2), after "sworn" insert "or affirmed".

26.6 In section 81(3), for "whether sworn or unsworn" substitute "even if the affidavit is not sworn or affirmed".



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26.7 In section 81(7), after "sworn" insert "or affirmed".

26.8 In section 95B(1), after "oath" insert "or affirmation".

26.9 In section 101(1), (3) and (3A), after "sworn" insert "or affirmed".

26.10 In section 109(3)(b), after "oath" insert "or affirmation".



26.13 In section 137(2), after "oath" insert "or affirmation".



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4 Explanatory details



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