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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Confiscation Amendment Bill 2007
TABLE OF PROVISIONS
Clause Page
1 Purpose 1
2 Commencement 2
3 Principal Act 2
4 Definitions 2
5 Determination of exclusion application--restraining order--
Schedule 1 offence 5
6 Determination of exclusion application--restraining order--
automatic forfeiture 5
7 Declaration that restraining order shall be disregarded for
purposes of automatic forfeiture 7
8 Determination of exclusion application--restraining order--
civil forfeiture 7
9 Automatic forfeiture of restrained property on conviction of
certain offences 8
10 Determination of exclusion application--forfeiture order 8
11 Determination of exclusion application--automatic forfeiture 9
12 Determination of exclusion application--civil forfeiture order 9
13 Assessment of benefits in relation to Schedule 2 offences 10
14 Declaration that property available to satisfy order 10
15 Order for examination 10
16 Appeals 10
17 New sections 176, 177 and 178 inserted 11
176 Validation of certain exclusion orders--Confiscation
Amendment Act 2007 11
177 Existing applications for exclusion orders--
Confiscation Amendment Act 2007 14
178 Sufficient consideration--Confiscation Amendment
Act 2007 15
18 Miscellaneous amendments relating to property 16
19 Repeal of Act 16
__________________
561124B.I-7/8/2007 i BILL LA INTRODUCTION 7/8/2007
Clause Page
SCHEDULE--Miscellaneous Amendments to the Principal Act
Relating to Property 17
1 Section 11 17
2 Section 12 17
3 Section 15 17
4 Section 19 17
5 Section 20 18
6 Section 26 18
7 Section 27 18
8 Section 28 18
9 Section 29 18
10 Section 31 18
11 Section 36 19
12 Section 37 19
13 Section 38 19
14 Section 39 19
15 Section 51 19
16 Section 53 19
17 Section 60 19
18 Section 65 19
19 Section 67 20
20 Section 68 20
21 Section 133A 20
ENDNOTES 21
561124B.I-7/8/2007 ii BILL LA INTRODUCTION 7/8/2007
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Confiscation Amendment Bill 2007
A Bill for an Act to amend the Confiscation Act 1997 to clarify the
operation and scope of provisions relating to exclusion orders and
related appeal provisions, to make miscellaneous amendments
relating to interests in property which may be subject to orders under
that Act and for other purposes.
The Parliament of Victoria enacts:
1 Purpose
The main purpose of this Act is to amend the
Confiscation Act 1997--
(a) to clarify the operation and scope of
5 provisions relating to exclusion orders,
including related appeal provisions; and
(b) to make miscellaneous amendments relating
to interests in property which may be subject
to orders under that Act.
561124B.I-7/8/2007 1 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
s. 2
2 Commencement
This Act comes into operation on the day after the
day on which it receives the Royal Assent.
3 Principal Act
5 See:
Act No.
In this Act, the Confiscation Act 1997 is called
108/1997. the Principal Act.
Reprint No. 4
as at
10 March
2005
and
amending
Act Nos
108/2004,
6/2005,
18/2005,
16/2006,
79/2006 and
10/2007.
LawToday:
www.
legislation.
vic.gov.au
4 Definitions
(1) In section 3(1) of the Principal Act insert the
following definitions--
10 "derived property means property--
(a) used in, or in connection with, any
unlawful activity by--
(i) the defendant; or
(ii) the person who is suspected of
15 having committed a Schedule 2
offence; or
(iii) the applicant for an exclusion
order; or
(b) derived or realised, or substantially
20 derived or realised, directly or
indirectly, from any unlawful activity
by--
561124B.I-7/8/2007 2 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
s. 4
(i) the defendant; or
(ii) the person who is suspected of
having committed a Schedule 2
offence; or
5 (iii) the applicant for an exclusion
order; or
(c) derived or realised, or substantially
derived or realised, directly or
indirectly, from property of a kind
10 referred to in paragraph (a) or (b);
Note
Property is defined as including any interest in
property: see definition in this section.
domestic partner of a person means an adult
15 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
20 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--
25 (a) for fee or reward; or
(b) on behalf of another person or an
organisation (including a government
or government agency, a body
corporate or a charitable or benevolent
30 organisation);
restrained property means property, including an
interest in property, to which a restraining
order applies;
spouse of a person means a person to whom that
35 person is married;".
561124B.I-7/8/2007 3 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
s. 4
(2) In section 3(1) of the Principal Act, at the foot of
the definition of tainted property insert--
"Note
Property is defined as including any interest in property:
5 see definition in this section.".
(3) In section 3(1) of the Principal Act insert the
following definition--
"sufficient consideration, in relation to property,
means consideration that reflects the market
10 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
15 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
20 transferor;
(d) consideration arising from love and
affection;
(e) transfer by way of gift;".
(4) After section 3(2) of the Principal Act insert--
25 "(3) For the purposes of the definition of
domestic partner in subsection (1)--
(a) in determining whether persons are
domestic partners of each other, all the
circumstances of their relationship are
30 to be taken into account, including any
one or more of the matters referred to in
section 275(2) of the Property Law
Act 1958 as may be relevant in a
particular case;
561124B.I-7/8/2007 4 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
s. 5
(b) a person is not a domestic partner of
another person only because they are
co-tenants.".
5 Determination of exclusion application--restraining
5 order--Schedule 1 offence
(1) In section 21 of the Principal Act--
(a) in paragraph (a), after "order excluding the"
insert "applicant's interest in the";
(b) in paragraph (b), after "order excluding the"
10 (where twice occurring) insert "applicant's
interest in the".
(2) For section 21(b)(i)(D) of the Principal Act
substitute--
"(D) the applicant's interest in the property was
15 not subject to the effective control of the
defendant on the earlier of the date that the
defendant was charged with the Schedule 1
offence or the date that the restraining order
was made in relation to the property; and".
20 (3) For section 21(b)(ii)(A) of the Principal Act
substitute--
"(A) the applicant's interest in the property was
not subject to the effective control of the
defendant on the earlier of the date that the
25 defendant was charged with the Schedule 1
offence or the date that the restraining order
was made in relation to the property; and".
6 Determination of exclusion application--restraining
order--automatic forfeiture
30 (1) In section 22 of the Principal Act--
(a) in paragraph (a), after "order excluding the"
insert "applicant's interest in the";
(b) in paragraph (b), after "order excluding the"
insert "applicant's interest in the";
561124B.I-7/8/2007 5 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
s. 6
(c) in paragraph (c), after "order excluding the"
insert "applicant's interest in the".
(2) After section 22(a)(ii) of the Principal Act
insert--
5 "(iia) the property is not derived property; and".
(3) In section 22(b)(i) of the Principal Act, after
"tainted property" (where twice occurring) insert
"or derived property".
(4) For section 22(b)(i)(D) of the Principal Act
10 substitute--
"(D) the applicant's interest in the property was
not subject to the effective control of the
defendant on the earlier of the date that the
defendant was charged with the Schedule 2
15 offence or the date that the restraining order
was made in relation to the property; and".
(5) In section 22(b)(ii) of the Principal Act--
(a) after "tainted property" insert "or derived
property";
20 (b) for sub-subparagraph (A) substitute--
"(A) the applicant's interest in the property
was not subject to the effective control
of the defendant on the earlier of the
date that the defendant was charged
25 with the Schedule 2 offence or the date
that the restraining order was made in
relation to the property; and".
(6) For section 22(c)(iii) of the Principal Act
substitute--
30 "(iii) the property is not derived property; and
(iiia) the property is not tainted property; and".
561124B.I-7/8/2007 6 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
s. 7
7 Declaration that restraining order shall be
disregarded for purposes of automatic forfeiture
(1) In section 23 of the Principal Act, after "which it
relates to" insert "the applicant's interest in".
5 (2) In section 23 of the Principal Act--
(a) in paragraph (a), for "and (ii)" substitute
", (ii) and (iia)";
(b) in paragraph (b), for "and (iii)" substitute
", (iii) and (iiia)".
10 (3) At the foot of section 23 of the Principal Act
insert--
"Note
If the applicant's interest in property was restrained for the
purposes of satisfying a pecuniary penalty order or an order
15 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.".
8 Determination of exclusion application--restraining
20 order--civil forfeiture
(1) In section 24 of the Principal Act--
(a) in paragraph (a), after "order excluding the"
insert "applicant's interest in the";
(b) in paragraph (b), after "order excluding the"
25 insert "applicant's interest in the".
(2) In section 24(a) of the Principal Act, before
subparagraph (ii) insert--
"(i) the property is not derived property; and".
(3) In section 24(b) of the Principal Act, after "tainted
30 property" (where twice occurring) insert
"or derived property".
561124B.I-7/8/2007 7 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
s. 9
(4) For section 24(b)(iv) of the Principal Act
substitute--
"(iv) the applicant's interest in the property was
not subject to the effective control of the
5 person who is suspected to have committed
the Schedule 2 offence on the earlier of the
date on which that person was charged with
the Schedule 2 offence (if such a charge was
filed) or the date that the restraining order
10 was made in relation to the property; and".
9 Automatic forfeiture of restrained property on
conviction of certain offences
In section 35(1) of the Principal Act, for
"restrained property is forfeited" substitute
15 "restrained property, subject to any declaration
under section 23, is forfeited".
10 Determination of exclusion application--forfeiture
order
(1) In section 50(1) of the Principal Act--
20 (a) in paragraph (a), after "order excluding the"
insert "applicant's interest in the";
(b) in paragraph (b), after "order excluding the"
insert "applicant's interest in the".
(2) For section 50(1)(a)(iv) of the Principal Act
25 substitute--
"(iv) the applicant's interest in the property was
not subject to the effective control of the
defendant on the earlier of the date that the
defendant was charged with the Schedule 1
30 offence or the date that the restraining order
was made in relation to the property; and".
561124B.I-7/8/2007 8 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
s. 11
11 Determination of exclusion application--automatic
forfeiture
(1) In section 52(1) of the Principal Act, for "property
in which the applicant claims an interest"
5 substitute "the applicant's interest in property".
(2) In section 52(1) of the Principal Act, after "tainted
property" (wherever occurring) insert "or derived
property".
(3) For section 52(1)(a)(iv) of the Principal Act
10 substitute--
"(iv) the applicant's interest in the property was
not subject to the effective control of the
defendant on the earlier of the date that the
defendant was charged with the Schedule 2
15 offence or the date that the restraining order
was made in relation to the property; and".
(4) For section 52(1)(b)(i) of the Principal Act
substitute--
"(i) the applicant's interest in the property was
20 not subject to the effective control of the
defendant on the earlier of the date that the
defendant was charged with the Schedule 2
offence or the date that the restraining order
was made in relation to the property; and".
25 12 Determination of exclusion application--civil
forfeiture order
(1) In section 54(1) of the Principal Act--
(a) for "excluding property in which the
applicant claims an interest" substitute
30 "excluding the applicant's interest in
property";
(b) after "tainted property" (wherever occurring)
insert "or derived property".
561124B.I-7/8/2007 9 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
s. 13
(2) For section 54(1)(d) of the Principal Act
substitute--
"(d) the applicant's interest in the property was
not subject to the effective control of the
5 person who is suspected to have committed
the Schedule 2 offence on the earlier of the
date on which that person was charged with
the Schedule 2 offence (if such a charge was
filed) or the date that the restraining order
10 was made in relation to the property; and".
13 Assessment of benefits in relation to Schedule 2
offences
For section 68(4)(a)(i)(B) of the Principal Act
substitute--
15 "(B) is not derived property; and
(C) is not tainted property; or".
14 Declaration that property available to satisfy order
For section 70(1)(a) of the Principal Act
substitute--
20 "(a) was subject to the effective control of the
defendant on the earlier of the date that the
defendant was charged with the offence for
which the defendant was convicted or the
date when the restraining order was made;
25 or".
15 Order for examination
In section 98(2)(c)(ii) of the Principal Act, after
"tainted property" insert "or restrained property".
16 Appeals
30 (1) In section 142(1)(b) of the Principal Act, for
"section 22" substitute "section 21, 22, 50(1)".
561124B.I-7/8/2007 10 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
s. 17
(2) In section 142(4) of the Principal Act, for
"section 22," (where twice occurring) substitute
"section 21, 22, 24,".
(3) After section 142(5)(b) of the Principal Act
5 insert--
"(ba) the making of an exclusion order under
section 21, 22, 50(1) or 52(1); or".
(4) At the foot of section 142 of the Principal Act
insert--
10 "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.
15 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
20 or the Supreme Court, the requirements and procedures set
out in Part 6 of that Act and the relevant Rules of Court
apply.".
17 New sections 176, 177 and 178 inserted
After section 175 of the Principal Act insert--
25 "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
30 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
35 order was made or purported to be made has,
and is deemed always to have had, the same
561124B.I-7/8/2007 11 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
s. 17
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.
(2) An exclusion order made, or purported to be
5 made, under section 22 and in force, or
purportedly in force, immediately before the
commencement of section 6(1) of the
Confiscation Amendment Act 2007 that
would have been validly made if section 22
10 as amended by section 6(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
15 section 22 as amended by section 6(1) of that
Act had been in operation at that time.
(3) An exclusion order made, or purported to be
made, under section 24 and in force, or
purportedly in force, immediately before the
20 commencement of section 8(1) of the
Confiscation Amendment Act 2007 that
would have been validly made if section 24
as amended by section 8(1) of that Act had
been in operation at the time the relevant
25 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 24 as amended by section 8(1) of that
Act had been in operation at that time.
30 (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
35 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
561124B.I-7/8/2007 12 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
s. 17
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
5 that time.
(5) An exclusion order made, or purported to be
made, under section 52(1) and in force, or
purportedly in force, immediately before the
commencement of section 11(1) of the
10 Confiscation Amendment Act 2007 that
would have been validly made if section
52(1) as amended by section 11(1) of that
Act had been in operation at the time the
relevant order was made or purported to be
15 made has, and is deemed always to have had,
the same force and effect as it would have
had if section 52(1) as amended by section
11(1) of that Act had been in operation at
that time.
20 (6) An exclusion order made, or purported to be
made, under section 54(1) and in force, or
purportedly in force, immediately before the
commencement of section 12(1) of the
Confiscation Amendment Act 2007 that
25 would have been validly made if section
54(1) as amended by section 12(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,
30 the same force and effect as it would have
had if section 54(1) as amended by section
12(1) of that Act had been in operation at
that time.
(7) Nothing in this section affects the rights of
35 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.
561124B.I-7/8/2007 13 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
s. 17
177 Existing applications for exclusion
orders--Confiscation Amendment Act
2007
(1) Despite section 14 of the Interpretation of
5 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--
10 (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
15 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
20 by section 6(1) of the Confiscation
Amendment Act 2007 had been in
operation at the time the application
was made; and
(c) in the case of an application for an
25 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
30 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
35 Amendment Act 2007 had been in
operation at the time the application
was made; and
561124B.I-7/8/2007 14 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
s. 17
(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
5 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
10 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.
15 (2) 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.
20 178 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
25 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
30 have been committed.
(2) 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
35 of Victoria, Court of Appeal.".
561124B.I-7/8/2007 15 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
s. 18
18 Miscellaneous amendments relating to property
The provisions of the Principal Act specified in
the Schedule are amended as set out in that
Schedule.
5 19 Repeal of Act
This Act is repealed on the first anniversary of its
commencement.
__________________
561124B.I-7/8/2007 16 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
Sch.
SCHEDULE
Section 18
MISCELLANEOUS AMENDMENTS TO THE PRINCIPAL
ACT RELATING TO PROPERTY
5 1 Section 11
At the foot of section 11 insert--
"Note
Property is defined as including any interest in property:
see section 3(1).".
10 2 Section 12
At the foot of section 12 insert--
"Note
Property is defined as including any interest in property:
see section 3(1).".
15 3 Section 15
In section 15(1)--
(a) after "property", where first occurring, insert
"or an interest in property";
(b) after "property", where secondly occurring,
20 insert "or interest".
4 Section 19
At the foot of section 19 insert--
"Note
Section 14 provides that a restraining order may be made in
25 respect of property or an interest in property.".
561124B.I-7/8/2007 17 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
Sch.
5 Section 20
For the note at the foot of section 20 substitute--
"Notes
1 Section 14 provides that a restraining order may be
5 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.".
6 Section 26
At the foot of section 26 insert--
10 "Note
Property is defined as including any interest in property:
see section 3(1).".
7 Section 27
In section 27(7)(b)(iii), after "transfer of" insert
15 "any interest in".
8 Section 28
At the foot of section 28 insert--
"Note
Section 14 provides that a restraining order may be made in
20 respect of property or an interest in property.".
9 Section 29
In section 29(2), after "deals with," insert
"an interest in".
10 Section 31
25 At the foot of section 31 insert--
"Note
Property is defined as including any interest in property:
see section 3(1).".
561124B.I-7/8/2007 18 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
Sch.
11 Section 36
At the foot of section 36 insert--
"Note
Section 14 provides that a restraining order may be made in
5 respect of property or an interest in property.".
12 Section 37
At the foot of section 37 insert--
"Note
Section 14 provides that a restraining order may be made in
10 respect of property or an interest in property.".
13 Section 38
In section 38(2), after "property" insert "or any
particular interest in property".
14 Section 39
15 In section 39(2), after "transfer of" insert
"any interest in".
15 Section 51
In section 51(5), after "to have" insert
"that person's interest in".
20 16 Section 53
In section 53(5), after "to have" insert
"that person's interest in".
17 Section 60
In section 60(2), after "transfer of" insert
25 "any interest in".
18 Section 65
In section 65(2), after "transfer of" insert
"any interest in".
561124B.I-7/8/2007 19 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
Sch.
19 Section 67
At the foot of section 67 insert--
"Note
Property is defined as including any interest in property:
5 see section 3(1).".
20 Section 68
At the foot of section 68 insert--
"Note
Property is defined as including any interest in property:
10 see section 3(1).".
21 Section 133A
At the foot of section 133A insert--
"Note
Property is defined as including any interest in property:
15 see section 3(1).".
561124B.I-7/8/2007 20 BILL LA INTRODUCTION 7/8/2007
Confiscation Amendment Bill 2007
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561124B.I-7/8/2007 21 BILL LA INTRODUCTION 7/8/2007
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