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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Confiscation Act 1997
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Definitions 3
4. Meaning of "conviction" 11
5. Meaning of "absconds" 11
6. Meaning of "quashing of conviction" 12
7. Meaning of "charged with an offence" 13
8. Related offences 13
9. Effective control of property 13
10. Property in which the defendant has an interest 14
11. Meaning of "dealing with property" 14
12. Jurisdiction 15
13. Act to bind Crown 16
PART 2--RESTRAINING ORDERS 18
14. Restraining orders 18
15. Purposes for which a restraining order may be made 19
16. Application for restraining order 20
17. Procedure on application 22
18. Determination of application 23
19. Notice of restraining order to be given to persons affected 23
20. Application for exclusion from restraining order 24
21. Determination of exclusion application--restraining order--
forfeiture offence 25
22. Determination of exclusion application--restraining order--
automatic forfeiture offence 27
23. Declaration that restraining order shall be disregarded for
purposes of automatic forfeiture 29
24. Determination of exclusion application--restraining order--civil
forfeiture 30
25. Declaration that restraining order shall be disregarded for
purposes of civil forfeiture order 31
26. Further orders 31
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27. Duration and setting aside of restraining order 33
28. Registration of restraining order 36
29. Contravention of restraining order 37
30. Priority given to payment of restitution or compensation 38
31. State to pay restitution and compensation out of forfeited
property etc. 38
PART 3--FORFEITURE OF PROPERTY 40
Division 1--Forfeiture on Court Order 40
32. Application for forfeiture order 40
33. Determination of application for forfeiture order 42
34. Consent orders 43
Division 2--Automatic Forfeiture after Conviction 44
35. Automatic forfeiture of restrained property on conviction of
certain offences 44
36. Declaration that property has been forfeited 45
PART 4--CIVIL FORFEITURE 47
37. Application for civil forfeiture order 47
38. Determination of application for civil forfeiture order 49
39. Consent orders 50
40. Forfeiture of property that may be used as evidence in trial 51
PART 5--EFFECT OF FORFEITURE 52
41. Effect of forfeiture 52
42. Power to discharge mortgage or charge 53
43. Court may give directions 54
44. Disposal of forfeited property 54
45. Relief from hardship 56
46. Discharge of forfeiture order 56
47. Discharge of automatic forfeiture in respect of an interest 57
48. Discharge of civil forfeiture order 59
PART 6--EXCLUSION ORDERS 60
49. Application for exclusion from forfeiture order 60
50. Determination of exclusion application--forfeiture order 61
51. Application for exclusion from automatic forfeiture 62
52. Determination of exclusion application--automatic forfeiture 64
53. Application for exclusion from civil forfeiture order 65
54. Determination of exclusion application--civil forfeiture order 67
PART 7--RETURN OF PROPERTY 68
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55. Application to Minister for return of property or payment of
value 68
56. Person with interest in forfeited property may buy back interest 70
57. Buying out other interests in forfeited property 71
PART 8--PECUNIARY PENALTY ORDERS 74
Division 1--Automatic forfeiture offence or forfeiture offence 74
58. Application for pecuniary penalty order 74
59. Determination of application for pecuniary penalty order 75
60. Consent orders 77
61. Pecuniary penalty order does not prevent forfeiture 78
62. Discharge of pecuniary penalty order 78
Division 2--Civil forfeiture offence 79
63. Application for pecuniary penalty order 79
64. Determination of application for pecuniary penalty order 81
65. Consent orders 82
66. Discharge of pecuniary penalty order 83
Division 3--General 83
67. Assessment of benefits 83
68. Assessment of benefits in relation to civil forfeiture offences and
automatic forfeiture offences 85
69. Variation of pecuniary penalty order 87
70. Declaration that property available to satisfy order 88
71. Court may give directions 89
72. Charge on property subject to restraining order or declaration 89
73. Disposal of property obtained to satisfy pecuniary penalty order 92
74. Pecuniary penalty order debt due to Crown 93
PART 9--POWERS OF TRUSTEE 94
75. Liability under forfeiture or pecuniary penalty order to be
satisfied by trustee 94
76. Provisions concerning the trustee 94
PART 10--DISPOSAL ORDERS 98
77. Application for disposal order 98
78. Disposal orders 99
PART 11--SEARCH WARRANTS 100
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79. Search warrants 100
80. Application for warrant 101
81. Search warrant may be granted by telephone 101
82. Record of proceedings for warrant 103
83. Notice to occupier of premises entered under search warrant 103
84. Duty to show warrant 105
85. Use of force. 105
86. Use of assistants to execute warrant 105
87. Application of Magistrates' Court Act 1989 105
88. Expiry of warrant 105
89. Report on execution of warrant etc. 106
90. Absence etc. of magistrate or judge who issued warrant 107
91. Defects in warrants 107
92. Seizure of property under search warrant 107
93. Embargo notice 108
94. Search of persons under search warrant 109
95. Obstruction or hindrance of person executing search warrant 109
96. Disposal of livestock or perishable property 110
97. Return of seized property 110
PART 12--EXAMINATION ORDERS 115
98. Order for examination 115
99. Examination 116
PART 13--INFORMATION GATHERING POWERS 118
Division 1--Production Orders 118
100. Application for production order 118
101. Production orders 118
102. Powers under production orders 120
103. Expiry of production order 121
104. Report on execution of production order etc. 121
105. Absence etc. of magistrate or judge who made production order 122
106. Effect of production orders on proceedings etc. 122
107. Variation of production orders 123
108. Failure to comply with production order 123
Division 2--Search Powers 125
109. Application for search warrant for property-tracking documents 125
110. Search warrants 126
111. Expiry of warrant 127
112. Application of Magistrates' Court Act 1989 127
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113. Authority conferred by search warrant 128
114. Search for documents with consent 128
Division 3--Monitoring Orders 129
115. Application for monitoring order 129
116. Monitoring orders 130
117. Failure to comply with monitoring order 131
118. Existence and operation of monitoring order not to be disclosed 131
Division 4--Reports of Suspect Transactions 134
119. Reports of suspect transactions 134
Division 5--Interstate Offences 136
120. Ministerial arrangements for transmission of documents or
information 136
PART 14--MONEY LAUNDERING 139
121. Definitions 139
122. Money laundering 139
123. Possession etc. of property suspected of being proceeds of crime 140
PART 15--INTERSTATE ORDERS AND WARRANTS 141
124. Definition 141
125. Registration of interstate orders 141
126. Effect of registration 142
127. Duration of registration 143
128. Cancellation of registration 143
129. Charge on property subject to registered interstate restraining
order 143
130. Trustee may act as agent 144
131. Interstate orders and search warrants 144
PART 16--MISCELLANEOUS 147
132. Standard of proof 147
133. Nature of proceedings 147
134. Crime Prevention and Victims' Aid Fund 147
135. Conversion costs 148
136. Stamp duty not payable 148
137. Service of documents 149
138. Maximum fine for body corporate 150
139. Law enforcement agency to provide information to Minister 150
140. Secrecy 150
141. Court may hear applications at same time 151
142. Appeals 152
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143. Provision of legal aid 154
144. Operation of other laws not affected 156
145. Supreme Court--limitation of jurisdiction 156
146. Regulations 156
147. Rules of court 157
PART 17--AMENDMENT OF SENTENCING ACT 1991 158
148. New Part 2B inserted 158
PART 2B--CONTINUING CRIMINAL ENTERPRISE
OFFENDERS 158
6G. Application of Part 158
6H. Definitions for purposes of this Part 158
6I. Increased maximum penalty for CCE offences 159
6J. CCE offender status to be noted on record 159
149. New Schedule 1A inserted 160
SCHEDULE 1A 160
PART 18--CONSEQUENTIAL AMENDMENTS AND
TRANSITIONAL PROVISIONS 162
150. Repeal 162
151. Crimes Act 1958 162
152. Drugs, Poisons and Controlled Substances Act 1981 162
153. Evidence Act 1958 163
154. Magistrates' Court Act 1989 163
155. Road Safety Act 1986 163
156. Sentencing Act 1991 164
157. Transitional 165
__________________
SCHEDULES 168
SCHEDULE 1--Forfeiture Offences 168
SCHEDULE 2--Automatic Forfeiture Offences 174
SCHEDULE 3--Civil Forfeiture Offences 176
NOTES 177
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PARLIAMENT OF VICTORIA
Initiated in Assembly 12 November 1997
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.
Confiscation Act 1997
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The purposes of this Act are--
(a) to provide for the forfeiture of the proceeds
5 of certain offences, whatever the form into
which they have been converted;
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(b) to provide for the automatic forfeiture of
restrained property of persons convicted of
certain offences in certain circumstances;
(c) to provide for the forfeiture, without
5 requiring a conviction, of property of a
person if the Supreme Court finds it more
probable than not that the person has
engaged in certain drug offences;
(d) to provide for the forfeiture of property used
10 in connection with the commission of certain
offences;
(e) to provide for the freezing of assets;
(f) to provide for the destruction or disposal of
certain illegal goods;
15 (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
20 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
25 Profits) Act 1986;
(k) to make consequential amendments to
certain other Acts.
2. Commencement
(1) This Part comes into operation on the day on
30 which this Act receives the Royal Assent.
(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
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(3) If a provision referred to in sub-section (2) does
not come into operation before 1 January 1999, it
comes into operation on that day.
3. Definitions
5 In this Act--
"account" means any facility or arrangement
through which a financial institution accepts
deposits or allows withdrawals and includes
a facility or arrangement for--
10 (a) a fixed term deposit; and
(b) a safety deposit box;
"appeal period", in relation to a defendant's
conviction of an offence, means the period
ending--
15 (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
20 (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
25 Magistrates' Court or the Children's
Court--the Chief Commissioner of
Police; or
(b) in the case of an application that is
prescribed by the regulations for the
30 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;
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"automatic forfeiture" means--
(a) forfeiture under section 35; or
(b) the making of a pecuniary penalty order
on an application under section 58(1) if
5 section 68 applies in relation to the
automatic forfeiture offence;
"automatic forfeiture offence" means an offence
referred to in Schedule 2 and, in Parts 11, 13
and 14, includes an interstate offence;
10 "bank" means--
(a) the Reserve Bank of Australia; or
(b) a bank within the meaning of the
Banking Act 1959 of the
Commonwealth; or
15 (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
20 incorporated as a building society, co-
operative housing society or similar society
under an Act or the laws of another State or a
Territory;
"cash dealer" has the same meaning as in the
25 Financial Transaction Reports Act 1988 of
the Commonwealth;
"civil forfeiture" means--
(a) forfeiture under a civil forfeiture order;
or
30 (b) the making of a pecuniary penalty order
under Division 2 of Part 8;
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"civil forfeiture offence" means an offence
referred to in Schedule 3 and, in Parts 11, 13
and 14, includes an interstate offence;
"civil forfeiture order" means an order made
5 under Part 4;
"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
10 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
15 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
20 the laws of another State or a Territory;
"defendant", in relation to an offence, means the
person who--
(a) has been or will be charged with the
offence; or
25 (b) has been convicted of the offence--
and in respect of whom an application is
made under this Act;
"Director" means the Director of the Australian
Transaction Reports and Analysis Centre
30 established by the Financial Transaction
Reports Act 1988 of the Commonwealth;
"disposal order" means an order made under
section 78;
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"DPP" means Director of Public Prosecutions for
Victoria;
"encumbrance", in relation to property, includes
any interest, mortgage, charge, right, claim
5 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
10 section 21, 22, 24, 50(1), 52(1) or 54(1);
"facsimile copy" means a copy obtained by
facsimile transmission;
"financial institution" means--
(a) a bank; or
15 (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
20 meaning of section 51(xx) of the
Constitution of the Commonwealth;
"fixed term deposit" means an interest bearing
deposit lodged for a fixed period;
"forfeiture offence" means an offence referred to
25 in Schedule 1 and, in Parts 11, 13 and 14,
includes an interstate offence;
"forfeiture order" means an order made under
Division 1 of Part 3;
"gift", in relation to property, includes a transfer
30 for a consideration significantly less than the
greater of--
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(a) the prevailing market value of the
property; or
(b) the consideration paid by the defendant;
"interest", in relation to property, means--
5 (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
10 is made under a corresponding law and is of
a kind declared by the regulations to be
within this definition;
"interstate offence" means an offence against the
laws of the Commonwealth or another State
15 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;
20 "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
25 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
30 (b) the police force of Victoria; or
(c) any other authority or person
responsible for the investigation or
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prosecution of offences against the laws
of--
(i) Victoria or any other State; or
(ii) the Commonwealth; or
5 (iii) the Australian Capital Territory or
the Northern Territory of
Australia--
that is prescribed for the purposes of
this definition;
10 "monitoring order" means an order made under
section 116;
"pecuniary penalty order" means an order made
under Part 8;
"premises" includes vessel, aircraft, vehicle and
15 any 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;
20 "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
25 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
30 quantifying property in which a
person has an interest; or
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(ii) identifying or locating any
document necessary for the
transfer of property in which a
person has an interest; or
5 (b) a document relevant to--
(i) identifying, locating or
quantifying tainted property; or
(ii) identifying or locating any
document necessary for the
10 transfer of tainted property;
"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
15 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
20 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
25 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
section 4(1)(c)--the day on which the
offence was taken into account;
30 "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;
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"restraining order" means an order made under
section 18;
"search warrant" means (except in Division 2 of
Part 13) a search warrant issued under Part
5 11 and in Division 2 of Part 13 means a
search warrant issued under that Division;
"tainted property", in relation to an offence,
means property that--
(a) was used, or was intended by the
10 defendant to be used in, or in
connection with, the commission of the
offence; or
(b) was derived or realised, or substantially
derived or realised, directly or
15 indirectly, from property referred to in
paragraph (a); or
(c) was derived or realised, or substantially
derived or realised, directly or
indirectly, by any person from the
20 commission of the offence;
"trustee" means--
(a) a trustee company within the meaning
of the Trustee Companies Act 1984;
(b) an official liquidator within the
25 meaning of the Corporations Law of
Victoria;
"unlawful activity" means an act or omission
that constitutes an offence against a law in
force in the Commonwealth, Victoria or
30 another State, a Territory or a foreign
country;
"Victoria Legal Aid" means Victoria Legal Aid
established under the Legal Aid Act 1978.
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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;
5 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
10 (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
15 but, before the charge is finally determined,
the person absconds.
(2) For the purposes of this Act, a person who,
because of sub-section (1), is deemed to have been
convicted of an offence, is deemed to have
20 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
25 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
30 following occurs--
(i) the person dies without the warrant
being executed; or
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(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
5 (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
10 (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
15 justice; and
(B) extradition proceedings are on
foot--
and subsequently those proceedings
terminate without an order for the
20 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
25 sufficient weight to support a conviction for
the offence.
6. Meaning of "quashing of conviction"
For the purposes of this Act, a conviction is
deemed to have been quashed--
30 (a) where the person is deemed to have been
convicted by reason of section 4(1)(a)--if
the conviction is quashed or set aside or a
free pardon is granted by the Governor; or
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(b) where the person is deemed to have been
convicted by reason of section 4(1)(b)--if
the finding of guilt is quashed or set aside; or
(c) where the person is deemed to have been
5 convicted by reason of section 4(1)(c)--if
the decision of the court to take the offence
into account is quashed or set aside.
7. Meaning of "charged with an offence"
(1) For the purposes of this Act, a person is deemed to
10 have been charged with an offence if--
(a) a presentment has been made or an
indictment has been laid for the offence; or
(b) a charge has been filed against the person for
the offence--
15 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
20 charge includes a reference to the entering of a
nolle prosequi.
8. Related offences
For the purposes of this Act, two offences are
related to one another if the elements of the two
25 offences are substantially the same acts or
omissions.
9. Effective control of property
(1) For the purposes of this Act, property may be
subject to the effective control of a person
30 whether or not the person has an interest in it.
(2) In determining whether or not property is subject
to the effective control of a person or whether or
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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
5 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
10 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.
15 10. Property in which the defendant has an interest
For the purposes of an application under this Act
in relation to an offence, property in which the
defendant has an interest includes--
(a) any property that is, on the day when the first
20 application is made under this Act in respect
of that offence, subject to the effective
control of the defendant; and
(b) any property that was the subject of a gift
from the defendant to another person--
25 (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
30 or civil forfeiture.
11. Meaning of "dealing with property"
For the purposes of this Act, dealing with property
of a person includes--
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(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
5 (c) receiving or making a gift of the property;
and
(d) creating or assigning an interest in the
property.
12. Jurisdiction
10 (1) The jurisdiction given to the Children's Court by
this Act is exercisable by the Criminal Division of
that Court.
(2) The Magistrates' Court or the Children's Court
must not make a restraining order or a forfeiture
15 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
20 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
25 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 a
defendant for a particular forfeiture offence, make
30 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)
35 does not exceed the jurisdictional limit of the
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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 (5) The Magistrates' Court or the Children's Court
must not, in relation to the conviction of a
defendant for a particular forfeiture offence, make
a pecuniary penalty order against the defendant
unless it is satisfied that the amount payable under
10 the order (together with the amount payable under
any other undischarged pecuniary penalty order
made against the defendant by that court in
relation to that conviction) does not exceed the
jurisdictional limit of the Magistrates' Court in
15 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
20 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 has jurisdiction.
(7) For the purposes of this section, the value of
25 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 (except a civil forfeiture order)
irrespective of the value of the property or the
30 amount payable.
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
35 capacities.
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(2) Nothing in this Act renders the Crown in any of
its capacities liable to be prosecuted for an
offence.
_______________
5
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PART 2--RESTRAINING ORDERS
14. Restraining orders
(1) A restraining order is an order that no property or
interest in property, that is property or an interest
5 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
10 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;
15 (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
20 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.
25 (3) If the court making a restraining order considers
that the circumstances so require, the order may
direct a trustee specified in the order to take
control of some or all of the property specified in
the order.
30 (4) A restraining order may, at the time it is made or
at a later time, provide for meeting--
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(a) the reasonable living expenses (including the
reasonable living expenses of any
dependants); and
(b) reasonable business expenses--
5 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
10 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 sub-sections (4) and (5), a restraining
15 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 refuses or
fails to give to the court any undertakings that the
20 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
25 property in order that the property 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;
30 (b) to satisfy automatic forfeiture of property
that may occur under Division 2 of Part 3;
(c) to satisfy any civil forfeiture order that may
be made under Part 4;
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(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
5 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--
10 (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
15 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.
16. Application for restraining order
20 (1) If a person has been, or within the next 48 hours
will be, charged with or has been convicted of--
(a) a civil forfeiture offence, the DPP or a
prescribed person, or a person belonging to a
prescribed class of persons, may apply,
25 without notice, to the Supreme Court;
(b) an automatic forfeiture offence, the DPP may
apply, without notice, to the Supreme Court
or the County Court;
(c) any other forfeiture offence--
30 (i) the DPP may apply, without notice, to
any court; or
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(ii) 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
5 which the defendant has an interest or which is
tainted property.
(2) For the purposes of civil forfeiture, it does not
matter that the charge has been withdrawn or
finally determined.
10 (3) An application under sub-section (1) for the
purposes of automatic forfeiture may only be
made before the end of the relevant period in
relation to the conviction.
(4) An application under sub-section (1) must be
15 supported by an affidavit of--
(a) a member of the police force; 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
20 the member or person believes the following
matters and setting out the grounds on which the
member or person holds those beliefs--
(c) in the case of an application made in reliance
on the proposed charging of the defendant
25 with an offence, that the defendant will be so
charged within the next 48 hours; and
(d) that the defendant has an interest in the
property or the property is tainted property,
as the case may be; and
30 (e) if the restraining order is being sought for a
purpose referred to in paragraph (a), (d) or
(e) of section 15(1), that--
(i) a forfeiture order may be made in
respect of the property; or
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(ii) a pecuniary penalty order may be made
against the defendant; or
(iii) an order for restitution or compensation
may be made under the Sentencing Act
5 1991.
17. Procedure on application
(1) The court may require an applicant under section
16(1) to give notice of the application to any
person whom the court has reason to believe has
10 an interest in the property that is the subject of the
application.
(2) Any person notified under sub-section (1) is
entitled to appear and to give evidence at the
hearing of the application but the absence of that
15 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
20 (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
25 proceeding or of any information derived
from the proceeding.
(4) The court must cause a copy of any order made
under sub-section (3) to be posted on a door of the
court house or in another conspicuous place where
30 notices are usually posted at the court house.
(5) A person must not contravene an order posted
under sub-section (4).
Penalty: Imprisonment for 12 months or
1000 penalty units.
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18. Determination of application
On an application under section 16(1), the court
must make a restraining order if it is satisfied that
the defendant--
5 (a) has been, or within the next 48 hours will be,
charged with; or
(b) has been convicted of--
a forfeiture offence, an automatic forfeiture
offence or a civil forfeiture offence (as the case
10 may be) and either--
(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
15 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
20 be, made for restitution or
compensation under the Sentencing
Act 1991 in respect of the forfeiture
offence, automatic forfeiture offence or
civil forfeiture offence; and
25 (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
30 (1) If--
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(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--
5 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
sub-section (1) cannot be found after all
reasonable steps have been taken to locate the
10 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.
15 20. Application for exclusion from restraining order
(1) If a court makes a restraining order against
property under section 18, any person claiming an
interest in the property (including the defendant)
may apply to that court for an order under section
20 21, 22 or 24.
(2) An applicant must give notice of the application,
and 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
25 reason to believe has an interest in the
property.
(3) Any person referred to in sub-section (2) is
entitled to appear and to give evidence at the
hearing of an application for an order under
30 section 21, 22 or 24 but the absence of that person
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does not prevent the court from making an order
under section 21, 22 or 24.
(4) If the person referred to in sub-section (2)(a)
proposes to contest an application for an exclusion
5 order, that person must give the applicant notice
of the grounds on which the application is to be
contested.
21. Determination of exclusion application--restraining
order--forfeiture offence
10 On an application made under section 20, where
the restraining order has been made in relation to
a forfeiture offence (other than for a purpose
referred to in paragraph (b) or (c) of section
15(1))--
15 (a) if the court is satisfied that the property in
which the applicant claims an interest--
(i) is not tainted property; and
(ii) will not be required to satisfy any
purpose for which the restraining order
20 was made--
the court may make an order excluding the
property from the operation of the restraining
order; or
(b) if the applicant is a person other than the
25 defendant and--
(i) the court is not satisfied as specified in
paragraph (a)(i), the court may make an
order excluding the property from the
operation of the restraining order if
30 satisfied that--
(A) the applicant was not, in any way,
involved in the commission of the
forfeiture offence; and
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(B) where the applicant acquired the
interest before the commission, or
alleged commission, of the
forfeiture offence, the applicant
5 did not know that the defendant
would use, or intended to use, the
property in, or in connection with,
the commission of the forfeiture
offence; and
10 (C) where the applicant acquired the
interest at the time of or after the
commission, or alleged
commission, of the forfeiture
offence, the applicant acquired the
15 interest without knowing, and in
circumstances such as not to
arouse a reasonable suspicion, that
the property was tainted property;
and
20 (D) the applicant's interest in the
property is not subject to the
effective control of the defendant;
and
(E) where the applicant acquired the
25 interest from the defendant,
directly or indirectly, that it was
acquired for sufficient
consideration; or
(ii) the court is satisfied as specified in
30 paragraph (a)(i) but not satisfied as
specified in paragraph (a)(ii), the court
may make an order excluding the
property from the operation of the
restraining order if satisfied that--
35 (A) the applicant's interest in the
property is not subject to the
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effective control of the defendant;
and
(B) where the applicant acquired the
interest from the defendant,
5 directly or indirectly, that it was
acquired for sufficient
consideration.
22. Determination of exclusion application--restraining
order--automatic forfeiture offence
10 On an application made under section 20, where
the restraining order has been made in relation to
an automatic forfeiture offence for the purposes of
automatic forfeiture--
(a) the court may make an order excluding the
15 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
20 (ii) the property was not used in, or in
connection with, any unlawful activity
and was not derived or realised, directly
or indirectly, by any person from any
unlawful activity; and
25 (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;
(b) where the application is made by a person
30 other than the defendant, the court may make
an order excluding 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
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interest is not tainted property but is
satisfied that--
(A) the applicant was not, in any way,
involved in the commission of the
5 automatic forfeiture offence; and
(B) where the applicant acquired the
interest before the commission, or
alleged commission, of the
automatic forfeiture offence, the
10 applicant did not know that the
defendant would use, or intended
to use, the property in, or in
connection with, the commission
of the automatic forfeiture
15 offence; and
(C) where the applicant acquired the
interest at the time of or after the
commission, or alleged
commission, of the automatic
20 forfeiture offence, the applicant
acquired the interest without
knowing, and in circumstances
such as not to arouse a reasonable
suspicion, that the property was
25 tainted property; and
(D) the applicant's interest in the
property is not subject to the
effective control of the defendant;
and
30 (E) where the applicant acquired the
interest from the defendant,
directly or indirectly, that it was
acquired for sufficient
consideration; or
35 (ii) if the court is satisfied that the property
is not tainted property and that--
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(A) the applicant's interest in the
property is not subject to the
effective control of the defendant;
and
5 (B) where the applicant acquired the
interest from the defendant,
directly or indirectly, that it was
acquired for sufficient
consideration; or
10 (c) where the application is made by the
executor or administrator of the estate of a
deceased defendant, the court may make an
order excluding the property from the
operation of the restraining order if the court
15 is satisfied that--
(i) the defendant is dead; and
(ii) the applicant has a reasonable belief
that the interest claimed by the estate of
the defendant was lawfully acquired by
20 the defendant; and
(iii) the property was not used in, or in
connection with, any unlawful activity
and was not derived or realised, directly
or indirectly, by any person from any
25 unlawful activity; 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.
30 23. Declaration that restraining order shall be
disregarded for purposes of automatic forfeiture
If--
(a) in the circumstances set out in section 22(a),
the court is satisfied of the matters referred
35 to in sub-paragraphs (i) and (ii); or
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(b) in the circumstances set out in section 22(c),
the court is satisfied of the matters referred
to in sub-paragraphs (i), (ii) and (iii)--
but the interest is not excluded from the operation
5 of the restraining order, the court may, by order,
declare that the restraining order, to the extent to
which it relates to the property, shall be
disregarded for the purposes of section 35.
24. Determination of exclusion application--restraining
10 order--civil forfeiture
On an application made under section 20, where
the restraining order has been made in relation to
a civil forfeiture offence for the purposes of civil
forfeiture--
15 (a) the court may make an order excluding 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
20 acquired by the applicant; and
(ii) the property was not used in, or in
connection with, any unlawful activity
and was not derived or realised, directly
or indirectly, by any person from any
25 unlawful activity; 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;
30 (b) where the application is made by a person
other than the defendant, the court may make
an order excluding the property from the
operation of the restraining order if the court
is satisfied that--
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(i) the applicant's interest in the property is
not subject to the effective control of
the defendant; and
(ii) where the applicant acquired the
5 interest from the defendant, directly or
indirectly, that it was acquired for
sufficient consideration.
25. Declaration that restraining order shall be
disregarded for purposes of civil forfeiture order
10 If, in the circumstances set out in section 24(a),
the court is satisfied of the matters referred to in
sub-paragraphs (i) and (ii) but the interest is not
excluded from the operation of the restraining
order, the court may, by order, declare that the
15 restraining order, to the extent to which it relates
to the property, shall be disregarded for the
purposes of section 38.
26. Further orders
(1) The court may, when it makes a restraining order
20 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 sub-section (1) may be made on
the application of--
25 (a) the applicant for the restraining order; or
(b) the defendant; or
(c) a person to whose property the restraining
order relates or who has an interest in that
property; or
30 (d) a trustee--if the restraining order directed
the trustee to take control of property; or
(e) any other person who obtains the leave of the
court to apply.
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(3) Any person referred to in sub-section (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
5 from making an order.
(4) The applicant for an order under sub-section (1)
must give written notice of the application to each
other person referred to in paragraphs (a) to (d) of
sub-section (2) who could have applied for the
10 order.
(5) Examples of the kind of order that the court may
make under sub-section (1) are--
(a) an order varying the property to which the
restraining order relates;
15 (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);
20 (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
25 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
30 particulars of the property to which the
restraining order relates as the court thinks
proper;
(g) an order directing any relevant registration
authority not to register any instrument
35 affecting property to which the restraining
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order relates while it is in force except in
accordance with the order;
(h) if the restraining order directed a trustee to
take control of property--
5 (i) an order regulating the manner in which
the trustee may exercise powers or
perform duties under the restraining
order;
(ii) an order determining any question
10 relating to the property.
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 in reliance on the
proposed charging of a defendant with a forfeiture
15 offence, an automatic forfeiture offence or a civil
forfeiture offence, the defendant has not been
charged with the offence or a related offence that
is a forfeiture offence, automatic forfeiture
offence or civil forfeiture offence, whether or not
20 in the same Schedule as the original offence, the
order ceases to be in force at the end of that
period.
(2) A restraining order made in reliance on a civil
forfeiture offence ceases to be in force on the
25 expiry of 7 days after it is made unless an
application for a civil forfeiture order or a
pecuniary penalty order in respect of that civil
forfeiture offence is then pending before the
Supreme Court.
30 (3) If, when a restraining order was made in reliance
on the charging, or proposed charging, of a
defendant with a forfeiture offence, an automatic
forfeiture offence or a civil forfeiture offence or in
reliance on the conviction of a defendant of such
35 an offence--
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(a) the charge is withdrawn and the defendant is
not charged with a related offence that is a
forfeiture offence, an automatic forfeiture
offence or a civil forfeiture offence by the
5 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
10 (b) the defendant is acquitted of the charge
(other than a charge of a civil forfeiture
offence) and the defendant is not charged
with a related offence that is a forfeiture
offence, an automatic forfeiture offence or a
15 civil forfeiture 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
20 (c) the conviction of the defendant of the
offence is subsequently quashed, the
restraining order ceases to be in force when
the appeal period expires unless a re-trial has
been ordered at the time of the quashing of
25 the conviction.
(4) If, while a restraining order in respect of an
interest in property is in force, a court makes a
forfeiture order or a civil forfeiture order in
respect of the interest or makes a pecuniary
30 penalty order against the defendant or makes an
order for restitution or compensation under the
Sentencing Act 1991, that court or the Supreme
Court may--
(a) make an order setting aside the restraining
35 order in respect of the whole or a specified
part of the interest; or
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(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 is made for a purpose
5 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 may--
(a) make an order in relation to the purpose and
period for which the restraining order is to
10 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
15 restraining order on the application of a defendant
if the defendant--
(a) gives security satisfactory to the court for the
payment of any pecuniary penalty that may
be imposed on the defendant under Part 8; or
20 (b) gives undertakings satisfactory to the court
concerning the defendant's property.
(7) An order under sub-section (4), (5) or (6) may be
made so as--
(a) to set aside the restraining order wholly or in
25 part; and
(b) to take effect--
(i) on the making of the first-mentioned
order; or
(ii) at a specified time; or
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(iii) if relevant, on the payment of money or
the transfer of property to the State; or
(iv) on the happening of some other
specified event--
5 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 sub-section (4), (5) or (6) may be
made on the application of--
10 (a) the applicant for the restraining order; or
(b) the defendant; or
(c) any person to whose property the restraining
order relates or who has an interest in that
property; or
15 (d) a trustee--if the restraining order directed
the trustee to take control of property; or
(e) any other person who obtains the leave of the
court to apply.
28. Registration of restraining order
20 (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,
25 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
30 prescribed particulars of the restraining order.
(2) Without limiting sub-section (1), if a restraining
order or an interstate restraining order registered
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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
5 to that order.
(3) For the purposes of sub-section (2) and without
limiting that sub-section--
(a) the applicant for the restraining order; or
(b) if the restraining order directed a trustee to
10 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
15 of the person, the trustee--
is deemed to be a person mentioned in section 89
of the Transfer of Land Act 1958.
29. Contravention of restraining order
(1) A person who knowingly contravenes a
20 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);
25 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--
30 or to both.
(2) If the prescribed particulars referred to in section
28(1) are recorded as required by that section, a
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person who disposes of, or otherwise deals with,
the property after the recording of those
particulars is, for the purposes of sub-section (1),
to be taken to know of the restraining order.
5 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
10 compensation is made under the Sentencing 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,
15 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.
20 If--
(a) a restraining order is made for a purpose
referred to in section 15(1)(e); and
(b) property is forfeited by or under this Act, or
a pecuniary penalty order is made, in relation
25 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
30 awarded in relation to that offence--
the State must satisfy, to the value of the property
forfeited or the amount of the penalty paid (less
conversion costs), the order for restitution,
compensation or damages.
35 _______________
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PART 3--FORFEITURE OF PROPERTY
Division 1--Forfeiture on Court Order
32. Application for forfeiture order
(1) If a defendant is convicted of a forfeiture offence,
5 the DPP or an appropriate officer may apply to the
Supreme Court or the court before which the
defendant was convicted of the offence for a
forfeiture order in respect of tainted property.
(2) Except with the leave of the court, an application
10 may only be made under sub-section (1) before
the end of the relevant period (if any) in relation
to the conviction.
(3) A court must not grant leave under sub-section (2)
unless it is satisfied that--
15 (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
20 (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 defendant; and
25 (b) to any other person whom the applicant has
reason to believe has an interest in the
property.
(5) The court may waive the requirement under sub-
section (4) to give notice if--
30 (a) the defendant is present before the court; and
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(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
5 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
10 the court thinks fit.
(7) Any person notified under sub-section (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
15 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
20 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 sub-section (1) has been
finally determined, no further application may be
25 made under that sub-section in relation to the
same conviction, except with the leave of the
Supreme Court or the court which dealt with the
earlier application.
(10) A court must not grant leave under sub-section (9)
30 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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(b) necessary evidence became available only
after the earlier application was determined;
or
(c) it is otherwise in the interests of justice to do
5 so.
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
10 the property, or such of the property as is
specified by the court in the order, be forfeited to
the State.
(2) A forfeiture order must specify the interests in
property to which it applies.
15 (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
20 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
25 may, subject to 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 the conviction of which the
30 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.
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(5) In considering whether to make an order under
sub-section (1) in respect of particular property,
the court may have regard to--
(a) the use that is ordinarily made, or had been
5 intended to be made, of the property; and
(b) any 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
10 specified in section 50(1).
(6) A court must give priority to an application made
under section 84 (restitution order) or 86
(compensation order) of the Sentencing Act 1991
in relation to the same conviction and,
15 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
20 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
the respondent and of any person whom it has
25 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
30 order could be made under this Division and
which involves the payment of money or the
transfer of property to the State except--
(a) by way of a consent order under sub-section
(1); or
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(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
5 the court before which the person was
convicted of the forfeiture offence.
Division 2--Automatic Forfeiture after Conviction
35. Automatic forfeiture of restrained property on
conviction of certain offences
10 (1) If--
(a) a person is convicted of an automatic
forfeiture offence; and
(b) a restraining order is or was made under Part
2 in respect of property for the purposes of
15 automatic forfeiture in reliance on--
(i) the defendant's conviction of that
offence; or
(ii) the charging or proposed charging of
the defendant with that offence or a
20 related offence that is an automatic
forfeiture offence; and
(c) the restrained property is not the subject of
an exclusion order under section 22--
the restrained property1 is forfeited to the State on
25 the expiry of 60 days after--
(d) the making of the restraining order; or
(e) the defendant's conviction--
whichever is later.
(2) If, within the period of 60 days referred to in sub-
30 section (1), an application has been made for an
exclusion order under section 22 in respect of
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restrained property, the property is forfeited to the
State--
(a) if the application is refused or dismissed, at
the end of the period during which the
5 person may appeal against the refusal or
dismissal or, if such an appeal is lodged,
when the appeal is abandoned or finally
determined without the order having been
made; or
10 (b) if the application is withdrawn or struck out,
on that withdrawal or striking out.
(3) If a person is, by reason of section 4(1)(d),
deemed to have been convicted of an automatic
forfeiture offence, the DPP may apply to the
15 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 sub-section (3), the court
must not make an order declaring the date of
20 conviction of a person of an automatic forfeiture
offence unless it is satisfied that the person has
absconded.
36. Declaration that property has been forfeited
If a court makes a restraining order in reliance
25 on--
(a) a defendant's conviction of an automatic
forfeiture offence; or
(b) the charging or proposed charging of a
defendant with an automatic forfeiture
30 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 State under section 35 and the court, if
35 satisfied that the property has been forfeited to the
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State under that section, must make a declaration
accordingly.
_______________
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PART 4--CIVIL FORFEITURE
37. Application for civil forfeiture order
(1) If a defendant has been charged with a civil
forfeiture offence, the DPP or a prescribed person,
5 or a person belonging to a prescribed class of
persons, may apply to the Supreme Court for a
civil forfeiture order in respect of restrained
property in which the defendant has an interest.
(2) For the purposes of civil forfeiture, it does not
10 matter that the charge has been withdrawn or
finally determined.
(3) If a restraining order is in force under Part 2, the
application under sub-section (1) may only be
made within the period of 7 days after the making
15 of the restraining order.
(4) The applicant must give written notice of the
application--
(a) to the defendant; and
(b) to any other person whom the applicant has
20 reason to believe has an interest in the
property.
(5) The Supreme Court may waive the requirement
under sub-section (4) to give notice if--
(a) the defendant is present before the Court;
25 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
30 person not being present.
(6) The Supreme Court may, at any time before the
final determination of the application, require the
applicant to give notice of the application to any
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person, in any manner and within any time that
the Court thinks fit.
(7) Any person notified under sub-section (6) and any
other person who claims an interest in the
5 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 Supreme
Court from making a civil forfeiture order.
(8) The Supreme Court may, at any time before the
10 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.
15 (9) An application under sub-section (1) must not be
heard and determined before the expiry of 60 days
after the making of the application.
(10) If an application under sub-section (1) has been
finally determined, no further application may be
20 made under that sub-section in relation to the
same civil forfeiture offence, except with the
leave of the Supreme Court.
(11) The Supreme Court must not grant leave under
sub-section (10) unless it is satisfied that--
25 (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
30 after the earlier application was determined;
or
(c) it is otherwise in the interests of justice to do
so.
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(12) 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
5 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
10 from the proceeding.
(13) The court must cause a copy of any order made
under sub-section (12) to be posted on a door of
the court house or in another conspicuous place
where notices are usually posted at the court
15 house.
(14) A person must not contravene an order posted
under sub-section (13).
Penalty: Imprisonment for 12 months or
1000 penalty units.
20 38. Determination of application for civil forfeiture order
(1) On an application under section 37(1), the
Supreme Court must order that the restrained
property2 be forfeited to the State if it finds on the
balance of probabilities that the defendant
25 committed the civil forfeiture offence with which
the defendant was charged, whether or not the
defendant has been tried and, if tried, acquitted.
(2) The Supreme Court may exclude particular
property from the operation of a civil forfeiture
30 order if satisfied that otherwise 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.
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(4) The Supreme Court may, subject to any rules of
court, take into account in determining the
application any material that it thinks fit
including, if the application is heard after the
5 defendant has been tried for the civil forfeiture
offence, evidence given in any proceeding relating
to that offence 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
10 evidence given on the hearing of the application.
(5) The quashing of a conviction for a civil forfeiture
offence does not affect the validity of a civil
forfeiture order that was made before or after the
conviction was quashed and was based on that
15 offence.
(6) The making of a civil forfeiture order does not
prevent the making of a pecuniary penalty order.
39. Consent orders
(1) The Supreme Court may make a civil forfeiture
20 order by consent of the applicant and 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
25 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
Part and which involves the payment of money or
the transfer of property to the State except--
30 (a) by way of a consent order under sub-section
(1); or
(b) as restitution of stolen property; or
(c) as compensation for loss or destruction of, or
damage to, property; or
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(d) with the approval of the Supreme Court.
40. Forfeiture of property that may be used as evidence in
trial
A civil forfeiture order may be made in respect of
5 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.
10 _______________
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PART 5--EFFECT OF FORFEITURE
41. Effect of forfeiture
(1) In this section "registrable property" means
property title to which is passed by registration on
5 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
10 (b) property is forfeited to the State by
automatic forfeiture under section 35--
the property vests in the State subject to every
mortgage, charge or encumbrance to which it was
subject immediately before the order was made or
15 the automatic 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
20 1958; and
(d) in the case of goods to which Part 3 of the
Chattel Securities Act 1987 applies, every
security interest registered under that Act.
(3) If registrable property is forfeited to the State
25 under a forfeiture order or a civil forfeiture order
or by automatic forfeiture under section 35--
(a) the property vests in equity in the State but
does not vest in the State at law until the
applicable registration requirements have
30 been complied with; and
(b) the State is entitled to be registered as owner
of the property; and
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(c) the Minister or a prescribed person
authorised by the Minister for the purposes
of this sub-section has power, on behalf of
the State, to do, or to authorise the doing of,
5 anything necessary or convenient to obtain
the registration of the State 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
10 that kind.
(4) If registrable property has been forfeited to the
State under a forfeiture order or a civil forfeiture
order or by automatic forfeiture under section 35,
the Minister or the DPP or a prescribed person
15 authorised by the Minister for the purposes of this
sub-section has power, on behalf of the State, to
do anything necessary or convenient to give
notice of, or otherwise protect, the equitable
interest of the State in the property.
20 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
25 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
30 forfeiture order or a civil forfeiture order or
automatic forfeiture, it may discharge that
mortgage or charge.
(2) The Registrar-General must make all entries on
the records of enrolment of any Crown Grant and
35 on any memorial relating to land that are
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necessary because of the operation of any order
under sub-section (1).
(3) The Registrar of Titles must make any
amendments to the Register under the Transfer of
5 Land Act 1958 that are necessary because of any
order under sub-section (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
10 civil forfeiture order made by it or to automatic
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 specified in the order to take
15 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
State under a forfeiture order or a civil forfeiture
20 order or by automatic forfeiture under section 35
then, subject to sub-section (2) and to any
direction under sub-section (4), the Minister or a
prescribed person authorised by the Minister for
the purposes of this sub-section must, as soon as
25 practicable after the property vests in the State,
sell or otherwise dispose of the property.
(2) Except with the leave of the court which made the
forfeiture order or the civil forfeiture order or, in
the case of automatic forfeiture, the court in which
30 the defendant was convicted, the State must not--
(a) dispose of, or otherwise deal with, the
property; or
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(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
5 an application has been made under section 49, 51
or 53 for an exclusion order, before the final
determination of the application, whichever is
later.
(3) For the purposes of sub-section (2), the appeal
10 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,
15 if such an appeal is lodged, when the appeal
is abandoned or finally determined;
(b) in the case of automatic forfeiture, when an
appeal may no longer be lodged against the
conviction in reliance on which automatic
20 forfeiture occurred or, if such an appeal is
lodged, when the appeal is abandoned or
finally determined.
(4) If property is forfeited under a forfeiture order or
a civil forfeiture order or by automatic forfeiture
25 under section 35, the Minister, or a prescribed
person authorised by the Minister for the purposes
of this sub-section, may, before the property is
dealt with under sub-section (1)(b), direct that the
property be disposed of, or otherwise dealt with,
30 as specified in the direction.
(5) Without limiting sub-section (4), the directions
that may be given under that sub-section include a
direction that property is to be disposed of in
accordance with the provisions of a law specified
35 in the direction.
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(6) If property is forfeited to the State under a
forfeiture order or a civil forfeiture order or by
automatic forfeiture under section 35, the
Minister, or a prescribed person authorised by the
5 Minister for the purposes of this sub-section, may
give all directions that are necessary or convenient
to realise the State's interest in the property.
45. Relief from hardship
(1) If a court is satisfied that hardship may reasonably
10 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
15 property, being an amount that the court
thinks is necessary to prevent hardship to the
person; and
(b) may make ancillary orders for the purpose of
ensuring the proper application of an amount
20 so paid to a person who is under 18 years of
age.
(2) An applicant for an order under sub-section (1)
must give written notice of the application to the
applicant for the forfeiture order or the civil
25 forfeiture order.
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 quashed; or
30 (b) if--
(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
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(ii) after the making of the order, the
person surrenders to a member of the
police force or is found or becomes for
any other reason amenable to justice;
5 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
10 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.
15 (2) If a forfeiture order is discharged in the manner
referred to in paragraph (a), (b) or (c) of sub-
section (1), the DPP must, as soon as practicable
after the discharge, give written notice of the
discharge to all persons whom the DPP has reason
20 to believe may have had an interest in the property
immediately before it was forfeited.
(3) A notice under sub-section (2) must include a
statement to the effect that a person claiming to
have had an interest in the property immediately
25 before it was forfeited may make an application
under section 55.
47. Discharge of automatic forfeiture in respect of an
interest
(1) Automatic forfeiture under section 35 is
30 discharged in respect of an interest in property--
(a) if the conviction in reliance on which the
automatic forfeiture occurred is subsequently
quashed; or
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(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
5 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
10 member of the police force or is found
or becomes for any other reason
amenable to justice; and
(iii) the person is acquitted, on appeal or
otherwise; and
15 (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.
20 (2) If automatic forfeiture is discharged in the manner
referred to in paragraph (a), (b) or (c) of sub-
section (1), the DPP must--
(a) as soon as practicable after the discharge,
give written notice of the discharge to all
25 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
30 or class of persons in the manner and within
the time that the court considers appropriate.
(3) A notice under sub-section (2) must include a
statement to the effect that a person claiming to
have had an interest in the property immediately
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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--
5 (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.
10 (2) If a civil forfeiture order is discharged in the
manner referred to in paragraph (a) of sub-section
(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
15 any person to whom notice of the application for
the civil forfeiture order was given under Part 4.
(3) A notice under sub-section (2) must include a
statement to the effect that a person claiming to
have had an interest in the property immediately
20 before it was forfeited may make an application
under section 55.
_______________
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PART 6--EXCLUSION ORDERS
49. Application for exclusion from forfeiture order
(1) If property is forfeited, or is sought to be forfeited,
to the State under a forfeiture order, a person
5 (other than the defendant) 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 sub-section (2), apply to the court
that made the forfeiture order or from which a
10 forfeiture order is sought for an order under
section 50.
(2) The application must, subject to sub-section (3),
be made at the same time as the application for a
forfeiture order or, if a forfeiture order has been
15 made, before the end of the period of 60 days
commencing on the day on which the forfeiture
order was made.
(3) The court that made the forfeiture order may grant
a person leave to apply after the end of the period
20 referred to in sub-section (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 applicant must give written notice of the
application, and of the grounds on which it is
25 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
property or had an interest in the property
30 immediately before it was forfeited.
(5) Any person notified under sub-section (4) is
entitled to appear and to give evidence at the
hearing of the application but the absence of that
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person does not prevent the court from making an
order under section 50.
(6) If--
(a) the person referred to in sub-section (4)(a)
5 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
10 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--
15 (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 property from the
operation of the forfeiture order if satisfied
20 that--
(i) the applicant was not, in any way,
involved in the commission of the
forfeiture offence; and
(ii) where the applicant acquired the
25 interest before the commission of the
forfeiture offence, the applicant did not
know that the defendant would use, or
intended to use, the property in, or in
connection with, the commission of the
30 forfeiture offence; and
(iii) where the applicant acquired the
interest at the time of or after the
commission of the forfeiture offence,
the applicant acquired the interest
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without knowing, and in circumstances
such as not to arouse a reasonable
suspicion, that the property was tainted
property; and
5 (iv) the applicant's interest in the property is
not subject to the effective control of
the defendant; and
(v) where the applicant acquired the
interest from the defendant, directly or
10 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 property from the
15 operation of the forfeiture order if satisfied
that--
(i) the applicant's interest in the property is
not subject to the effective control of
the defendant; and
20 (ii) where the applicant acquired the
interest from the defendant, directly or
indirectly, that it was acquired for
sufficient consideration.
(2) If the court makes an order under sub-section (1),
25 the court may also make an order declaring the
nature, extent and value of the applicant's interest
in the property.
51. Application for exclusion from automatic forfeiture
(1) If property is forfeited to the State under section
30 35, a person (other than the defendant) who claims
to have had an interest in the property
immediately before it was forfeited may, subject
to sub-sections (2) and (4), apply to the court that
made the relevant restraining order for an order
35 under section 52.
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(2) The application must, subject to sub-section (3),
be made before the end of the period of 60 days
commencing on the day on which the property is
forfeited to the State.
5 (3) The court that made the relevant restraining order
may grant a person leave to apply after the end of
the period referred to in sub-section (2) if it is
satisfied that the delay in making the application
is not due to neglect on the part of the applicant.
10 (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
15 (b) the making of the relevant restraining
order--
except with the leave of the court that made the
relevant restraining order.
(5) The court may grant a person leave under sub-
20 section (4) to make an application if the court is
satisfied that the person's failure to seek to have
the property excluded from the relevant
restraining order was not due to neglect on the
part of the applicant.
25 (6) An applicant must give written notice of the
application, and of the grounds on which it is
made--
(a) to the DPP; and
(b) to any person whom the applicant has reason
30 to believe had an interest in the property
immediately before it was forfeited.
(7) Any person notified under sub-section (6) is
entitled to appear and to give evidence at the
hearing of the application but the absence of that
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person does not prevent the court from making an
order under section 52.
(8) If the DPP proposes to contest an application for
an exclusion order, the DPP must give the
5 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
10 court may make an order excluding property in
which the applicant claims an interest from the
operation of section 35--
(a) if the court is not satisfied that the property
in which the applicant claims an interest is
15 not tainted property but is satisfied that--
(i) the applicant was not, in any way,
involved in the commission of the
automatic forfeiture offence; and
(ii) where the applicant acquired the
20 interest before the commission of the
automatic forfeiture offence, the
applicant did not know that the
defendant would use, or intended to
use, the property in, or in connection
25 with, the commission of the automatic
forfeiture offence; and
(iii) where the applicant acquired the
interest at the time of or after the
commission of the automatic forfeiture
30 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
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(iv) the applicant's interest in the property is
not subject to the effective control of
the defendant; and
(v) where the applicant acquired the
5 interest from the defendant, directly or
indirectly, that it was acquired for
sufficient consideration; or
(b) if the court is satisfied that the property is
not tainted property and that--
10 (i) the applicant's interest in the property is
not subject to the effective control of
the defendant; and
(ii) where the applicant acquired the
interest from the defendant, directly or
15 indirectly, that it was acquired for
sufficient consideration.
(2) If the court makes an order under sub-section (1),
the court may also make an order declaring the
nature, extent and value of the applicant's interest
20 in the property.
53. Application for exclusion from civil forfeiture order
(1) If property is forfeited to the State under section
38, a person (other than the defendant) who claims
to have had an interest in the property
25 immediately before it was forfeited may, subject
to sub-sections (2) and (4), apply to the Supreme
Court for an order under section 54.
(2) The application must, subject to sub-section (3),
be made before the end of the period of 60 days
30 commencing on the day on which the property is
forfeited to the State.
(3) The Supreme Court may grant a person leave to
apply after the end of the period referred to in sub-
section (2) if it is satisfied that the delay in
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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
5 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--
10 except with the leave of the Supreme Court.
(5) The Supreme Court may grant a person leave
under sub-section (4) to make an application if it
is satisfied that the person's failure to seek to have
the property excluded from the relevant
15 restraining order was not due to neglect on the
part of the applicant.
(6) An applicant must give written notice of the
application, and of the grounds on which it is
made--
20 (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.
25 (7) Any person notified under sub-section (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 an
order under section 54.
30 (8) If the applicant for the civil forfeiture order
proposes to contest an application for an exclusion
order, he or she must give the applicant for the
exclusion order written notice of the grounds on
which the application is to be contested.
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54. Determination of exclusion application--civil
forfeiture order
(1) On an application made under section 53, the
Supreme Court may make an order excluding
5 property in which the applicant claims an interest
from the operation of an order under section 38 if
it is satisfied that--
(a) the applicant's interest in the property is not
subject to the effective control of the
10 defendant; and
(b) the applicant acquired the interest for
sufficient consideration.
(2) If the Supreme Court makes an order under sub-
section (1), it may also make an order declaring
15 the nature, extent and value of the applicant's
interest in the property.
_______________
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PART 7--RETURN OF PROPERTY
55. Application to Minister for return of property or
payment of value
(1) If--
5 (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
10 (c) a civil forfeiture order is discharged in the
manner referred to in section 48(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
15 transfer of the interest to the person.
(2) If a court makes an exclusion order under section
50(1), 52(1) or 54(1) in respect of an interest in
property, the applicant for the exclusion order
may apply in writing to the Minister for the
20 transfer of the interest to the person.
(3) On receipt of an application under sub-section (1)
or (2), the Minister may transfer the interest to the
applicant if satisfied that--
(a) the interest was vested in the applicant
25 immediately before the forfeiture; and
(b) the interest is still vested in the State; and
(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
30 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
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any amount referred to in section 14(4) or 45 paid
to the person in relation to that forfeiture offence.
(5) If a person fails to make a payment referred to in
sub-section (4) within 6 months after receiving
5 notice of the condition, the Minister must not
transfer the interest to the person but sub-section
(6) applies as if the interest were no longer vested
in the State.
(6) If a person applies under sub-section (1) or (2) in
10 respect of an interest in property, which is no
longer vested in the State 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
15 50(2), 52(2) or 54(2), 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
20 declared under paragraph (a) less any
amount referred to in section 14(4) or 45
paid to the person in relation to that
forfeiture offence.
(7) An amount payable under sub-section (6) must be
25 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
30 the Minister for the purposes of this sub-section
has power, on behalf of the State, 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
35 the making of an application for registration of an
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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
5 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
(b) if no such determination has been made, an
10 amount equal to the value of the interest as
determined by the Minister--
less any amount referred to in section 14(4) or 45
paid to the applicant in relation to that forfeiture
offence.
15 (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.
20 56. Person with interest in forfeited property may buy
back interest
(1) If property is forfeited to the State under Part 3 or
Part 4, any person who claims to have had an
interest in the property immediately before it was
25 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
30 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 State; and
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(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
5 interest and notify the applicant accordingly.
(4) If the applicant pays to the Minister the amount so
notified within 6 months, the Minister may
transfer the interest to the applicant and the
forfeiture is discharged to the extent to which it
10 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 sub-section has
15 power, on behalf of the State, 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
20 property on any appropriate register.
(6) 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
25 any account.
(7) If an applicant has paid an amount under this
section in relation to an offence for which the
conviction is subsequently quashed, the applicant
is entitled to the refund of the amount paid.
30 57. Buying out other interests in forfeited property
(1) If property is forfeited to the State under Part 3 or
Part 4, 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
35 buy out any other interest in the property.
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(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--
5 (a) the applicant wishes to purchase that other
interest from the State; and
(b) the person notified may, within 28 days after
receiving the notice, lodge a written
objection to the purchase of that interest with
10 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
15 (b) the interest that the applicant wishes to
purchase is still vested in the State; 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
20 (as at the time of making the declaration) of the
interest and notify the applicant accordingly.
(4) If--
(a) a person notified under sub-section (2) does
not lodge a written objection to the purchase
25 of the person's interest with the Minister
within the period referred to in that sub-
section; and
(b) within 6 months after being notified of the
amount payable under sub-section (3) the
30 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.
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(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 sub-section has
5 power, on behalf of the State, 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
10 property on any appropriate register.
(6) 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
15 any account.
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PART 8--PECUNIARY PENALTY ORDERS
Division 1--Automatic forfeiture offence or forfeiture
offence
58. Application for pecuniary penalty order
5 (1) If a defendant is convicted of an automatic
forfeiture offence, the DPP may apply to the
Supreme Court or the court before which the
defendant was convicted of the offence for a
pecuniary penalty order.
10 (2) If a defendant is convicted of a forfeiture offence
other than an automatic forfeiture 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--
15 for a pecuniary penalty order.
(3) Except with the leave of the Supreme Court or the
court before which the defendant was convicted,
an application may only be made under sub-
section (1) or (2) before the end of the relevant
20 period (if any) in relation to the conviction.
(4) A court must not grant leave under sub-section (3)
unless it is satisfied that--
(a) the benefit to which the application relates
was derived, realised or identified only after
25 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.
30 (5) The applicant must give written notice of the
application to the defendant.
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(6) The court may waive the requirement under sub-
section (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
5 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.
10 (8) If an application under sub-section (1) or (2) has
been finally determined, no further application
may be made under that sub-section in relation to
the same conviction, except with the leave of the
Supreme Court or the court which dealt with the
15 earlier application.
(9) A court must not grant leave under sub-section (8)
unless it is satisfied that--
(a) the benefit to which the new application
relates was derived, realised or identified
20 only after the earlier application was
determined; or
(b) necessary evidence became available only
after the earlier application was determined;
or
25 (c) it is otherwise in the interests of justice to do
so.
59. Determination of application for pecuniary penalty
order
(1) On an application under section 58(1) or (2), the
30 court may--
(a) assess the value of the benefits derived by
the defendant in relation to the offence; and
(b) order the defendant to pay to the State a
pecuniary penalty equal to the value as so
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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
5 conviction--
and must do so on an application under section
58(1) if section 68 applies in relation to the
automatic forfeiture offence.
(2) The defendant is entitled to appear and to give
10 evidence at the hearing of an application under
section 58(1) or (2) but the absence of the
defendant does not prevent the court from making
a pecuniary penalty order.
(3) If an application is made under section 58(2) to
15 the court before which the defendant 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
20 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 any rules of court, take into
25 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
30 (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
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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 86
5 (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
10 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).
15 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
20 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
money or the transfer of property to the State
25 except--
(a) by way of a consent order under sub-section
(1); or
(b) as restitution of stolen property; or
(c) as compensation for loss or destruction of, or
30 damage to, property; or
(d) with the approval of the Supreme Court or
the court before which the defendant was
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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
5 The making of a pecuniary penalty order under
this Division against a defendant in relation to an
offence does not prevent--
(a) the making of a forfeiture order; or
(b) automatic forfeiture occurring--
10 in respect of an interest in property of the
defendant in relation to the same offence.
62. Discharge of pecuniary penalty order
(1) A pecuniary penalty order under this Division is
discharged--
15 (a) if the conviction in reliance on which the
order was made is subsequently quashed; or
(b) if--
(i) in reliance on the deemed conviction of
a person under section 4(1)(d), a
20 pecuniary penalty order has been made
under this Division against the person;
and
(ii) after the making of the order, the
person surrenders to a member of the
25 police force or is found or becomes for
any other reason amenable to justice;
and
(iii) the person is acquitted, on appeal or
otherwise; or
30 (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.
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(2) If a pecuniary penalty order is registered under the
Service and Execution of Process Act 1901 of the
Commonwealth, notice of the discharge of that
order must be given as prescribed by the rules of
5 the Supreme Court.
Division 2--Civil forfeiture offence
63. Application for pecuniary penalty order
(1) If a defendant has been charged with a civil
forfeiture offence, the DPP or a prescribed person,
10 or a person belonging to a prescribed class of
persons, may apply to the Supreme Court for a
pecuniary penalty order.
(2) For the purposes of civil forfeiture, it does not
matter that the charge has been withdrawn or
15 finally determined.
(3) If a restraining order is in force under Part 2, the
application under sub-section (1) may only be
made within the period of 7 days after the making
of the restraining order, except with the leave of
20 the Supreme Court.
(4) The Supreme Court must not grant leave under
sub-section (3) unless it is satisfied that--
(a) the benefit to which the application relates
was derived, realised or identified only after
25 the end of that period of 7 days; or
(b) necessary evidence became available only
after the end of that period; or
(c) it is otherwise in the interests of justice to do
so.
30 (5) The applicant must give written notice of the
application to the defendant.
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(6) The Supreme Court may waive the requirement
under sub-section (5) to give notice if the Court is
satisfied that it is fair to do so.
(7) The Supreme Court may, at any time before the
5 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.
10 (8) An application under sub-section (1) must not be
heard and determined before the expiry of 60 days
after the making of the application.
(9) If an application under sub-section (1) has been
finally determined, no further application may be
15 made under that sub-section in relation to the
same civil forfeiture offence, except with the
leave of the Supreme Court.
(10) The Supreme Court must not grant leave under
sub-section (9) unless it is satisfied that--
20 (a) the benefit 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
25 after the earlier application was determined;
or
(c) it is otherwise in the interests of justice to do
so.
(11) The Supreme Court may--
30 (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
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(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.
5 (12) The court must cause a copy of any order made
under sub-section (11) to be posted on a door of
the court house or in another conspicuous place
where notices are usually posted at the court
house.
10 (13) A person must not contravene an order posted
under sub-section (12).
Penalty: Imprisonment for 12 months or
1000 penalty units.
64. Determination of application for pecuniary penalty
15 order
(1) On an application under section 63(1), the
Supreme Court must, if it finds on the balance of
probabilities that the defendant committed the
civil forfeiture offence with which the defendant
20 was charged, whether or not the defendant has
been tried and, if tried, acquitted--
(a) assess the value of the benefits derived by
the defendant in relation to the offence; and
(b) order the defendant to pay to the State a
25 pecuniary penalty equal to the value as so
assessed less, if the Supreme 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 civil
30 forfeiture offence.
(2) The defendant is entitled to appear and to give
evidence at the hearing of an application under
section 63(1) but the absence of the defendant
does not prevent the Supreme Court from making
35 a pecuniary penalty order.
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(3) The Supreme Court may, subject to any rules of
court, take into account in determining the
application any material that it thinks fit
including--
5 (a) subject to section 99(2), a statement or
disclosure made during an examination
ordered under Part 12; and
(b) if the application is heard after the defendant
has been tried for the civil forfeiture offence,
10 evidence given in any proceeding relating to
that offence--
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
15 on the hearing of the application.
(4) The Supreme Court must give priority to an
application made under section 84 (restitution
order) or 86 (compensation order) of the
Sentencing Act 1991 in relation to the same civil
20 forfeiture offence and, accordingly, may defer the
determination of an application under section
63(1) until the application under the Sentencing
Act 1991 has been determined.
(5) The quashing of a conviction for a civil forfeiture
25 offence does not affect the validity of a pecuniary
penalty order that was made before or after the
conviction was quashed and was based on that
offence.
(6) The making of a pecuniary penalty order under
30 this Division against a defendant in relation to an
offence does not prevent the making of a civil
forfeiture order in relation to the same offence.
65. Consent orders
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(1) The Supreme 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
5 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
money or the transfer of property to the State
10 except--
(a) by way of a consent order under sub-section
(1); or
(b) as restitution of stolen property; or
(c) as compensation for loss or destruction of, or
15 damage to, property; or
(d) with the approval of the Supreme Court.
66. Discharge of pecuniary penalty order
(1) A pecuniary penalty order under this Division is
discharged if--
20 (a) it is discharged by the Court of Appeal on
hearing an appeal against it under section
142; or
(b) the pecuniary penalty is paid.
(2) If a pecuniary penalty order is registered under the
25 Service and Execution of Process Act 1901 of the
Commonwealth, notice of the discharge of that
order must be given as prescribed by the rules of
the Supreme Court.
Division 3--General
30 67. Assessment of benefits
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(1) For the purposes of this Part, the value of the
benefits derived by a defendant in relation to an
offence may include--
(a) any property that was derived or realised,
5 directly or indirectly, by the defendant or
another person, at the request or by the
direction of the defendant, as the result of the
commission of the offence;
(b) any benefit, service or financial advantage
10 provided for the defendant or another person,
at the request or by the direction of the
defendant, as the result of the commission of
the offence;
(c) any increase in the total value of property in
15 which the defendant 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
20 to causes unrelated to the commission of the
offence;
(d) subject to sub-section (3), any profits derived
by the defendant, or by another person on the
defendant's behalf or at the request or by the
25 direction of the defendant, from a depiction
of the offence or an expression of the
defendant's thoughts, opinions or emotions
regarding the offence in--
(i) a film, slide, video tape, video disc or
30 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
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(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;
5 (e) any other thing that the court thinks fit to
treat as benefits--
but must not include any property forfeited to the
State under this Act.
(2) For the purposes of sub-section (1)(c), if an
10 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
15 referred to in sub-section (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
20 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
25 for research, educational or rehabilitation
purposes.
68. Assessment of benefits in relation to civil forfeiture
offences and automatic forfeiture offences
(1) The DPP or a prescribed person or a person
30 belonging to a prescribed class of persons may
apply to the Supreme Court for the application of
this section in relation to a civil forfeiture offence.
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(2) The DPP may apply to the Supreme Court or the
County Court for the application of this section in
relation to an automatic forfeiture offence.
(3) In assessing the value of the benefits derived by a
5 defendant in relation to an offence, the court must,
on application under sub-section (1) or (2), subject
to sub-section (4), treat as benefits--
(a) all property in which the defendant had an
interest at the time the first application is
10 made under this Act in respect of the
offence; and
(b) all expenditure of the defendant within the
period of 6 years immediately before the
time the first application is made under this
15 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 State under this
20 Act.
(4) On an application under sub-section (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 defendant that--
25 (a) in the case of property--
(i) the property--
(A) was lawfully acquired by the
defendant; and
(B) was not used in, or in connection
30 with, any unlawful activity and
was not derived or realised,
directly or indirectly, by any
person from any unlawful activity;
or
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(ii) an interstate forfeiture order already
applies to the property; or
(iii) a forfeiture order, an interstate
forfeiture order, a pecuniary penalty
5 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--
10 (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
15 (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.
20 69. Variation of pecuniary penalty 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,
25 the court took into account the making of a
restitution or compensation order under the
Sentencing Act 1991 against the defendant
in relation to the offence; and
(c) an appeal against the restitution or
30 compensation order is allowed--
the DPP or the defendant may apply to the court
which made the pecuniary penalty order for a
variation of that order, taking into account the
successful appeal.
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(2) An applicant under sub-section (1) must give
written notice of the application to the DPP or the
defendant, as the case may be.
(3) On an application under sub-section (1) the court
5 may, if it considers it appropriate to do so, vary
the pecuniary penalty order.
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
10 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, on the date when the order was made,
subject to the effective control of the
15 defendant; or
(b) was the subject of a gift from the defendant
to another person--
make an order declaring that the whole, or a
specified part, of that property is available to
20 satisfy a pecuniary penalty order.
(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
defendant.
25 (3) An applicant under sub-section (1) must give
written notice of the application--
(a) to the person against whom the order is
sought; and
(b) to the defendant; and
30 (c) to any other person to whom the court directs
that notice be given; and
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(d) to any other person whom the applicant has
reason to believe has an interest in the
property.
(4) Any person notified under sub-section (3) and any
5 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.
10 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
15 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
20 declaration
(1) If--
(a) a court has made a restraining order in
respect of all or some of the property of a
person; and
25 (b) a court subsequently makes a pecuniary
penalty order against that person--
then there is created, on the making of the
pecuniary penalty order, a charge on all the
property of that person to which the restraining
30 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
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the declaration applies to secure the payment to
the State of the pecuniary penalty.
(3) A charge created by sub-section (1) or (2) on
property ceases to have effect if any of the
5 following occur--
(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
10 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
15 purchase, had no notice of the charge.
(4) A charge created by sub-section (1) or (2) on
property--
(a) except as provided by section 42(1), is
subject to every encumbrance to which the
20 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 sub-section (3), remains on the
25 property despite any disposal of the property.
(5) If--
(a) a charge is created by sub-section (1) or (2)
on property of a particular kind; and
(b) any law of Victoria provides for the
30 registration of charges on property of that
kind--
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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 sub-section (5), a
5 person who purchases the property after the
registration of the charge is, for the purposes of
sub-section (3)(d), to be taken to have had notice
of the charge.
(7) If--
10 (a) a declaration under section 70(1) 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
15 of that kind--
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.
20 (8) Without limiting sub-section (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.
25 (9) For the purposes of sub-section (8) and without
limiting that sub-section--
(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--
30 is deemed to be a person mentioned in section 89
of the Transfer of Land Act 1958.
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73. Disposal of property obtained to satisfy pecuniary
penalty order
(1) If property that is not money is obtained by the
State under a pecuniary penalty order then, subject
5 to sub-section (2) and to any direction under sub-
section (4), the Minister or a prescribed person
authorised by the Minister for the purposes of this
sub-section must, as soon as practicable after the
property vests in the State, sell or otherwise
10 dispose of the property.
(2) Except with the leave of the court which made the
pecuniary penalty order, the State must not--
(a) dispose of, or otherwise deal with, the
property; or
15 (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 sub-section (2), the appeal
20 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
was made or, if such an appeal is lodged, when
the appeal is abandoned or finally determined.
25 (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
sub-section, may, before the property is dealt with
under sub-section (1)(b), direct that the property
30 be disposed of, or otherwise dealt with, as
specified in the direction.
(5) Without limiting sub-section (4), the directions
that may be given under that sub-section include a
direction that property is to be disposed of in
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accordance with the provisions of a law specified
in the direction.
(6) If property is obtained by the State under a
pecuniary penalty order, the Minister, or a
5 prescribed person authorised by the Minister for
the purposes of this sub-section, may give all
directions that are necessary or convenient to
realise the State's interest in the property.
74. Pecuniary penalty order debt due to Crown
10 (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 may be
15 enforced as if it were an order made by it in civil
proceedings instituted by the Crown against the
defendant to recover a debt due by the defendant
to the Crown.
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PART 9--POWERS OF TRUSTEE
75. Liability under forfeiture or pecuniary penalty order
to be satisfied by trustee
(1) Any money realised by the trustee out of the
5 disposal of, or otherwise in connection with,
property which the trustee was directed to take
control of by a restraining order must be applied
by the trustee towards the following in the order
in which they are set out--
10 (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
15 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
20 under automatic forfeiture under section 35, the
liability of that person under the order or the
automatic forfeiture is, to the extent of the
payment, discharged.
76. Provisions concerning the trustee
25 (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
sub-section, on an application under this sub-
30 section 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.
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(2) If a trustee is directed by a 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
5 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
10 securities or investments--realising or
otherwise dealing with the securities or
investments;
(d) if the property consists, wholly or partly, of a
business--
15 (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;
20 (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.
25 (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.
30 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--
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(a) certifying that a restraining order has been
made directing the trustee to take control of
property and that the restraining order is in
force; and
5 (b) stating the terms of the restraining order--
is for all purposes evidence and, until the contrary
is proved, conclusive evidence of the facts so
certified and stated.
(5) A trustee is only personally liable for any rates,
10 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;
15 and
(b) fall due on or after the date of the restraining
order--
to the extent of the rents and profits received by
the trustee in respect of that property on or after
20 that date.
(6) If a trustee, having taken control under a
restraining order of a business carried on by a
person, carries on that business, the trustee is not
personally liable for--
25 (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
30 representative of such a person, becomes
entitled after the date of the restraining
order.
(7) With the permission of the Minister, or a
prescribed person authorised by the Minister for
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the purposes of this sub-section, 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
5 relation to property of which the trustee has taken
control under a restraining order.
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PART 10--DISPOSAL ORDERS
77. Application for disposal order
(1) If a person has been convicted of a forfeiture
offence, the DPP or an appropriate officer may,
5 without notice, subject to sub-section (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 or a poison or
10 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
15 or in 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
20 Act 1981; or
(c) an explosive substance within the meaning
of Division 8 of Part I of the Crimes Act
1958; or
(d) any property that is prescribed by the
25 regulations for the purposes of this sub-
section--
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
30 that person or another person, from the
commission of the offence.
(2) An application may only be made under sub-
section (1) before the end of the relevant period (if
any) in relation to the conviction.
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78. Disposal orders
(1) 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
5 appropriate, order that the property be forfeited to
the State and destroyed or disposed of in such
manner as is provided in the order if it is satisfied
that the property is property described in that
section.
10 (2) A court has power to give all directions that are
necessary to give effect to a disposal order made
by it.
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PART 11--SEARCH WARRANTS
79. Search warrants
(1) A member of the police force may apply to a
magistrate or to a judge of the Supreme Court or
5 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 sub-section (1) may, if satisfied that
there are reasonable grounds for believing that
10 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 member of the police
force to break and enter the premises and do either
15 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.
20 (3) A warrant may be issued under this Part in
reliance on the commission of a forfeiture 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
25 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
30 the warrant is issued; and
(c) a description of the kind of property
authorised to be seized.
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(5) Every warrant issued under sub-section (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.
5 80. Application for warrant
(1) An application for a search warrant must be made
in writing.
(2) A magistrate or judge must not issue a search
warrant unless--
10 (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
15 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
20 oath or affirmation or by affidavit.
(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.
81. Search warrant may be granted by telephone
25 (1) If, by reason of circumstances of urgency, a
member of the police force considers it necessary
to do so, the member may apply for a search
warrant under section 79 to a magistrate or judge,
by telephone, in accordance with this section.
30 (2) Before making the application, the member 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.
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(3) If transmission by facsimile machine is available,
the member must transmit a copy of the affidavit,
whether sworn or unsworn, to the magistrate or
judge who is to hear the application by telephone.
5 (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
10 concerning the grounds on which the warrant
is being sought--
the magistrate or judge is satisfied as required by
section 79(2), he or she may issue a search
warrant.
15 (5) If a magistrate or judge issues a search 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
20 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
25 the applicant.
(6) If a copy of the search warrant has not been
transmitted by facsimile machine, the applicant
must--
(a) complete a form of search warrant in the
30 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
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(b) not later than the day following the date of
the execution of the search warrant or the
expiry of the warrant, whichever is earlier,
send the form of warrant completed by the
5 applicant to the magistrate or judge who
issued the warrant.
(7) If an application is made by telephone, whether or
not a search warrant is issued, the applicant must,
not later than the day following the making of the
10 application, send the original affidavit duly sworn
to the magistrate or judge who heard the
application.
(8) In any proceeding, if it is material for a court to be
satisfied that an entry, search or seizure was
15 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,
20 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
must cause a record to be made of all relevant
25 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
30 grounds that to do so might jeopardise the safety
of any person.
83. Notice to occupier of premises entered under search
warrant
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(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--
5 (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
10 (iii) the date and the time when the warrant
was issued; and
(iv) the address or other description of the
premises which are the subject of the
warrant; and
15 (b) must contain a summary of the nature of the
warrant and the powers conferred by the
warrant.
(3) A member of the police force executing a search
warrant must--
20 (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
25 (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
30 issued the warrant may direct, as soon as
practicable after executing the warrant.
(4) Service of an occupier's notice under sub-section
(3)(b) may be postponed by the magistrate or
judge who issued the search warrant if he or she is
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satisfied that there are reasonable grounds for the
postponement.
(5) Service of an occupier's notice under sub-section
(3)(b) may be postponed on more than one
5 occasion, but must not be postponed on any one
occasion for a period exceeding 6 months.
84. Duty to show warrant
A member of the police force executing a search
warrant must produce the warrant for inspection
10 by an occupier of, or a person who is in charge of,
the premises if requested to do so.
85. Use of force.
A person authorised to search premises under a
search warrant may, if it is reasonably necessary
15 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 member of the police force may execute a
search warrant with the aid of any assistants that
20 the member 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
25 Magistrates' Court Act 1989 extend and apply to
warrants under this Part.
88. Expiry of warrant
A search warrant ceases to have effect--
(a) at the end of the period of 1 month after its
30 issue; or
(b) if it is recalled and cancelled by the
magistrate or judge who issued it; or
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(c) when it is executed--
whichever occurs first.
89. Report on execution of warrant etc.
(1) The person to whom a search warrant is issued
5 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
10 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
15 executed; and
(d) stating whether or not an occupier's notice
has been served in connection with the
execution of the warrant; and
(e) stating whether or not an embargo notice has
20 been issued under section 93 in connection
with the execution of the warrant and
describing briefly the property subject to the
notice.
(2) A report must be made within 10 days after the
25 expiry of the warrant.
(3) A person may apply to the magistrate or judge to
whom a report has been given under sub-section
(1) for an order authorising the person to inspect
the report if the person satisfies the magistrate or
30 judge that he or she is--
(a) the owner or occupier of premises upon
which the warrant was executed; or
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(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
5 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
10 warrant has ceased to hold office or is absent--
(a) a report required to be given to him or her
under section 89; or
(b) a power exercisable by him or her under
section 83(3)(b) or (4)--
15 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 is not invalidated by any defect,
other than a defect which affects the substance of
20 the warrant in a material particular.
92. Seizure of property under search warrant
(1) A member of the police force executing a search
warrant may seize property of the kind described
in the warrant.
25 (2) A member of the police force executing a search
warrant may also seize property which is not of
the kind described in the warrant if--
(a) the member of the police force believes on
reasonable grounds that the property--
30 (i) is of a kind which could have been
included in a search warrant issued
under this Part; or
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(ii) will afford evidence about the
commission of another forfeiture
offence; and
(b) the member believes on reasonable grounds
5 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 forfeiture offence.
(3) The power conferred by this section to seize
10 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
15 (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
20 (1) In this section, "property" does not include real
property.
(2) A member of the police force executing a search
warrant who is authorised by that warrant or
section 92 to seize property may, if the property
25 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;
30 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.
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(3) A person who knows that an embargo notice
relates to property and who sells, leases, moves,
transfers or otherwise deals with the property, or
any part of the property, while the embargo notice
5 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
10 against sub-section (3) to prove that the defendant
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,
movement, transfer or other dealing with property
15 in contravention of this section is void.
(6) If an application for a 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
20 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.
94. Search of persons under search warrant
(1) A member of the police force executing a search
25 warrant may, if the search warrant authorises him
or her to do so, search any person found in or on
the premises whom the member suspects on
reasonable grounds of having on his or her person
property of the kind described in the warrant.
30 (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
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A person must not, without reasonable excuse,
obstruct or hinder a person executing a search
warrant.
Penalty: Level 7 imprisonment (2 years
5 maximum) or a level 7 fine (240
penalty units maximum) or both.
96. Disposal of livestock or perishable property
(1) If property seized under a warrant is livestock or
property of a perishable nature, a prescribed
10 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
15 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
20 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.
25 (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
30 (1) If property has been seized under a warrant and--
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(a) by the end of the period of 7 days after the
property was seized, no person has been
charged with the forfeiture offence in
reliance on the commission of which the
5 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
10 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
15 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
20 (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 for a purpose
referred to in section 15(1)(c) or (d) in
25 relation to a civil forfeiture offence; or
(d) a person has been charged with and
convicted of such an offence but the
conviction is quashed and a retrial has not
been ordered at the time of the quashing of
30 the conviction and by the end of the period
of 7 days after the quashing of the conviction
the property is not restrained for a purpose
referred to in section 15(1)(c) or (d) in
relation to a civil forfeiture offence--
35 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
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such other person as the Minister or a prescribed
person authorised by the Minister for the purposes
of this sub-section directs.
(2) If--
5 (a) property has been seized under a search
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;
10 and
(c) the court refuses to make the order being
sought--
the court must make an order directing that the
property be returned to the person from whose
15 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 sub-section
directs forthwith or, if the refusal was a refusal to
make a civil forfeiture order, at the time and in the
20 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
other than property seized under a warrant
25 referred to in sub-section (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--
30 (a) directing that the property be returned to that
person; or
(b) directing that the person be allowed access to
the property--
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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 sub-section (3)
5 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
10 persons or to the appropriate officer, as the
case requires; and
(b) to any other person whom the applicant has
reason to believe has an interest in the
property.
15 (5) Any person notified under sub-section (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 sub-section (3).
20 (6) If the Magistrates' Court makes an order under
sub-section (3), 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 sub-section (4)(a);
25 or
(b) the person from whose possession the
property was seized; or
(c) any other person who claims an interest in
the property.
30 (7) An applicant under sub-section (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 sub-section (4)(a)
is the applicant, to the person from whose
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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
5 sub-section (4)(a).
(8) Any person notified under sub-section (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
10 order under sub-section (9).
(9) On an application under sub-section (6) the
Magistrates' Court may, if it considers it
appropriate--
(a) if the application is for a variation of the
15 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.
20 (10) A person must not knowingly contravene an order
made under sub-section (3).
Penalty: Level 7 imprisonment (2 years
maximum) or a level 7 fine (240
penalty units maximum) or both.
25 (11) This section (except sub-section (3)) applies to a
search warrant issued in reliance on the
commission of an interstate offence as if the
references in it to a forfeiture order included
references to an interstate forfeiture order.
30 _______________
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PART 12--EXAMINATION ORDERS
98. Order for examination
(1) In this section, "relevant person" means--
(a) in the case of an application in relation to a
5 civil forfeiture offence, the DPP or a
prescribed person or a person belonging to a
prescribed class of persons; or
(b) in the case of any other application, the DPP.
(2) If a court is satisfied that--
10 (a) a defendant has been charged with or
convicted of a forfeiture offence, an
automatic forfeiture offence or a civil
forfeiture offence (as the case may be); and
(b) it is appropriate to make an order under this
15 section--
the court may, on application by a relevant person,
make an order for the examination before the
court of any person concerning the affairs of the
defendant, including the nature and location of--
20 (c) any property in which the defendant has or
may have an interest; or
(d) any property which the applicant for the
order believes, on reasonable grounds, to be
tainted property.
25 (3) An application for an order under sub-section (2)
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
defendant, the court which made the
30 restraining order; or
(b) in any other case, any court.
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(4) The applicant must give written notice of an
application under this section to the defendant and
any person whom the applicant seeks to examine
under the order.
5 (5) For the purposes of an application under this
section in respect of a civil forfeiture offence, it
does not matter that the charge has been
withdrawn or finally determined.
99. Examination
10 (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
15 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
20 (c) any proceeding under this Act--
but is not otherwise admissible in evidence
against that person.
(3) A person who is ordered to attend an examination
referred to in section 98(2) must not--
25 (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
30 (c) refuse or fail to take an oath or make an
affirmation for the purpose of the
examination; or
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(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
5 material particular.
Penalty: Level 7 imprisonment (2 years
maximum) or a level 7 fine (240
penalty units maximum) or both.
_______________
10
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PART 13--INFORMATION GATHERING POWERS
Division 1--Production Orders
100. Application for production order
(1) In this section, "relevant offence" means a
5 forfeiture offence, an automatic forfeiture offence
or a civil forfeiture offence.
(2) If a person has been convicted of a relevant
offence or a member of the police force believes
that a person has committed a relevant offence,
10 the member may, without notice, apply to a court
for a production order against that person or
another person.
(3) An application under sub-section (2) must be
supported by an affidavit of the applicant--
15 (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
20 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
25 applicant holds those beliefs.
(4) The court hearing an application under sub-
section (2) may require the applicant to give it any
additional information that it requires concerning
the grounds on which the order is sought.
30 (5) An application under sub-section (2) must be
heard in closed court.
101. Production orders
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(1) A court may, on an application under section
100(2), 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
5 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 sub-
section (6).
(2) A production order may require the person against
10 whom it is made--
(a) to produce to a member of the police force at
a specified time and place; or
(b) to make available to a member of the police
force for inspection at a specified time or
15 times--
any property-tracking documents that are in the
person's possession or control.
(3) If the applicant's affidavit--
(a) states that he or she believes that--
20 (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
25 (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
30 (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
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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
5 document in relation to the offence.
(4) The court must not make a production order of the
kind referred to in sub-section (2)(a) in respect of
any ledgers, day-books, cash-books, account
books or other accounting records used in the
10 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
15 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
20 legal practitioner acting for 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 the
25 person for whom the legal practitioner is
acting or to any other person.
102. Powers under production orders
(1) If a document is produced to a member of the
police force under a production order, the member
30 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;
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(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 member of
5 the police force for inspection under a production
order, the member may do any one or more of the
following--
(a) inspect the document;
(b) take extracts from the document;
10 (c) make copies of the document.
(3) If a member of the police force retains a document
under a production order, he or she must, on
request by the person against whom the order was
made--
15 (a) give the person a copy of the document
certified by the member 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
20 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.
25 103. Expiry of production order
A production order ceases to have effect--
(a) at the end of the period of 1 month after its
issue; or
(b) when it is executed--
30 whichever occurs first.
104. Report on execution of production order etc.
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(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
5 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
10 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
15 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
20 report required to be given to him or her under
section 104 must be given to any other magistrate
or judge.
106. Effect of production orders on proceedings etc.
(1) A person is not excused from producing or
25 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
30 (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.
(2) If a person produces or makes available a
document under a production order--
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(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
5 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 sub-section (1)(b) in any criminal
10 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
15 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.
107. Variation of production orders
20 (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
25 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--
30 (a) contravene the order without reasonable
excuse; or
(b) in purported compliance with the order,
produce or make available a document
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known to the person to be false or
misleading in a material particular without--
(i) indicating to the member of the police
force to whom the document is
5 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
10 member of the police force if the
person is in possession of, or can
reasonably acquire, the correct
information.
Penalty: Level 7 imprisonment (2 years
15 maximum) or a level 7 fine (240
penalty units maximum) or both.
(2) A person against whom a production order is
made must not--
(a) without reasonable excuse, destroy, dispose
20 of or deliver to another person documents
subject to the order that were in the
possession or control of the first mentioned
person when notice of the making of the
order was given to the person; or
25 (b) in any other manner obstruct or evade
compliance with the order.
Penalty: Level 7 imprisonment (2 years
maximum) or a level 7 fine (240
penalty units maximum) or both.
30 (3) A person must not contravene an order made
under section 101(6).
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Penalty: Level 7 imprisonment (2 years
maximum) or a level 7 fine (240
penalty units maximum) or both.
Division 2--Search Powers
5 109. Application for search warrant for property-tracking
documents
(1) The DPP or a member of the police force may
apply to a magistrate or to a judge of the Supreme
Court or County Court for a search warrant for
10 property-tracking documents in relation to a
forfeiture offence, automatic forfeiture offence or
civil forfeiture offence of which a person has been
convicted or which the applicant has reasonable
grounds for believing to have been committed by
15 a person.
(2) An application can only be made under sub-
section (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-
20 tracking document in relation to the forfeiture
offence, automatic forfeiture offence or civil
forfeiture offence.
(3) An application under sub-section (1)--
(a) must be in writing; and
25 (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
30 under sub-section (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.
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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
5 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
10 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
15 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
20 immediate access to the document without
notice to any person.
(3) If the applicant's affidavit--
(a) states that he or she believes that--
(i) the person who was convicted of the
25 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
30 (ii) property specified in the application--
(A) is subject to the effective control
of that person; or
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(B) was the subject of a gift from that
person; and
(b) sets out the grounds on which the applicant
holds those beliefs--
5 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,
10 locating or quantifying that property as a
property-tracking document in relation to the
offence.
(4) There must be stated in a search warrant--
(a) the purpose for which the warrant is issued;
15 and
(b) the nature of the offence in reliance on which
the warrant is issued; and
(c) a description of the kind of documents
authorised to be seized.
20 (5) Every warrant issued under this section must be in
the prescribed form.
111. Expiry of warrant
A search warrant ceases to have effect--
(a) at the end of the period of 1 month after its
25 issue; or
(b) if it is recalled and cancelled by the
magistrate or judge who issued it; or
(c) when it is executed--
whichever occurs first.
30 112. Application of Magistrates' Court Act 1989
Except to the extent that a contrary intention
appears in this Division, the rules to be observed
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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
5 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
10 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
15 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--
20 (i) to be a property-tracking document in
relation to the offence (although not of
a kind described in the warrant) or in
relation to another forfeiture offence,
automatic forfeiture offence or civil
25 forfeiture offence; or
(ii) to be a thing that will afford evidence
about the commission of a forfeiture
offence--
and that he or she believes, on reasonable
30 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 member of the
police force, with the consent of the occupier of
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any premises, entering and searching the premises
for a property-tracking document in relation to a
forfeiture offence, automatic forfeiture offence or
civil forfeiture offence and seizing any document
5 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 Orders
115. Application for monitoring order
10 (1) A member of the police force 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
15 an account held by a particular person with the
institution, including information about--
(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.
20 (2) An application under sub-section (1) must be
supported by an affidavit of the applicant--
(a) stating that he or she believes that the person
in respect of whose account the information
is sought--
25 (i) has committed, or is about to commit, a
forfeiture offence, an automatic
forfeiture offence or a civil forfeiture
offence; or
(ii) was involved in the commission, or is
30 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,
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from the commission of such an
offence; and
(b) setting out the grounds on which the
applicant holds those beliefs.
5 (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 sub-section (1) must be
10 heard in closed court.
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
15 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--
20 (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
25 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.
30 (3) A period specified under sub-section (2)(e) must
not commence earlier than the day on which
notice of the order is given to the financial
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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
5 order has been made must be disregarded for the
purposes of the application of section 122 (money
laundering) in relation to the institution.
(5) When a monitoring order has been made the
applicant must give written notice of its making to
10 the financial institution against whom it is made.
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
15 (b) in purported compliance with the order give
information that is false or misleading in a
material particular.
Penalty: Level 5 fine (1200 penalty units
maximum).
20 (2) An offence against this section is a summary
offence.
118. Existence and operation of monitoring order not to be
disclosed
(1) A financial institution that is, or has been, subject
25 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 the police force of
30 Victoria as the law enforcement agency to
which information is to be given--a member
of the police force; or
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(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
5 agency; or
(c) an officer or agent of the financial
institution, for the purpose of ensuring that
the order is complied with; or
(d) a legal practitioner acting for the financial
10 institution, for the purpose of obtaining legal
advice or representation in relation to the
order.
Penalty: Level 5 fine (1200 penalty units
maximum).
15 (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 sub-section.
(3) A person to whom the existence or operation of a
20 monitoring order is disclosed in accordance with
sub-section (1) or to whom information is given
under sub-section (2) must not--
(a) while he or she is a person of a kind referred
to in paragraph (a), (b), (c) or (d) of sub-
25 section (1) or a person referred to in sub-
section (2), disclose the existence or
operation of the order to any person except
another person of that kind for the purpose
of--
30 (i) if the disclosure is made by a person of
a kind referred to in paragraph (a) or
(b) of sub-section (1) or a person
referred to in sub-section (2)--the
performance of his or her duties; or
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(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
5 representation in relation to the order;
or
(iii) if the disclosure is made by a legal
practitioner--giving legal advice or
providing representation in relation to
10 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 sub-section (1) or a person referred to
in sub-section (2), make a record of, or
15 disclose, the existence or operation of the
order in any circumstances.
Penalty: Level 7 imprisonment (2 years
maximum) or a level 7 fine (240
penalty units maximum) or both.
20 (4) Nothing in sub-section (3) prevents the disclosure
by a person of a kind referred to in paragraph (a)
or (b) of sub-section (1) or a person referred to in
sub-section (2) of the existence or operation of a
monitoring order--
25 (a) for the purposes of, or in connection with,
legal proceedings; or
(b) in the course of proceedings before a court.
(5) A person of a kind referred to in paragraph (a) or
(b) of sub-section (1) or a person referred to in
30 sub-section (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
35 person includes a reference to disclosing
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information to the person from which the person
could reasonably be expected to infer the
existence or operation of the monitoring order.
(7) An offence against sub-section (1) is a summary
5 offence.
Division 4--Reports of Suspect Transactions
119. Reports of suspect transactions
(1) A cash dealer who is a party to a transaction and
who has reasonable grounds for suspecting that
10 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
15 (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
20 contained in it to the Director.
(2) Sub-section (1) applies only where the cash dealer
is not required to report the transaction under
Division 2 of Part II of the Financial Transaction
Reports Act 1988 of the Commonwealth.
25 (3) The report must--
(a) be in the form approved by the Director in
writing for the purposes of section 16 of the
Financial Transaction Reports Act 1988 of
the Commonwealth;
30 (b) contain the reportable details of the
transaction;
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(c) set out the grounds for the suspicion referred
to in sub-section (1);
(d) be signed by the cash dealer.
(4) The communication to the Director of the
5 information contained in the report must be
made--
(a) by giving the Director a copy of the report;
or
(b) in any other manner and form approved by
10 the Director.
(5) An approval for the purposes of sub-section
(4)(b)--
(a) must be in writing; and
(b) may relate to a specified cash dealer or a
15 specified class of cash dealers.
(6) A cash dealer who communicates information to
the Director under sub-section (1) or Division 2 of
Part II of the Financial Transaction Reports Act
1988 of the Commonwealth must, if requested to
20 do so by a member of the police force, give any
further information that is specified in the request
to the extent to which the cash dealer has that
information.
(7) An action, suit or proceeding does not lie
25 against--
(a) a cash dealer; or
(b) an officer, employee or agent of the cash
dealer acting in the course of that person's
appointment, employment or agency--
30 in relation to any action by the cash dealer or
person taken under this section or taken in the
mistaken belief that it was required by this
section.
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(8) A cash dealer or an officer, employee or agent of a
cash dealer who communicates or gives
information under this section must be taken, for
the purposes of the offence of money laundering,
5 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
10 Director--
when and as required under sub-section (1).
Penalty: Level 7 imprisonment (2 years
maximum) or a level 7 fine (240
penalty units maximum) or both.
15 (10) A cash dealer must not, in communicating
information to the Director under sub-section (1),
knowingly--
(a) make a statement that is false or misleading
in a material particular; or
20 (b) omit from a statement any matter or thing
without which the statement is misleading in
a material particular.
Penalty: Level 7 imprisonment (2 years
maximum) or a level 7 fine (240
25 penalty units maximum) or both.
Division 5--Interstate Offences
120. Ministerial arrangements for transmission of
documents or information
(1) The Minister may enter into arrangements with a
30 Minister to whom the administration of a
corresponding law is committed under which--
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(a) documents or things seized, copies or
extracts of documents produced, and
information obtained under this Part in
respect of an interstate offence--
5 (i) are to be transmitted to the appropriate
law enforcement agency in the place
where the corresponding law is in force
for the purposes of investigation of, or
proceedings in respect of, that offence;
10 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
15 Police for Victoria; and
(b) documents or things seized, copies or
extracts of documents produced, and
information obtained under the
corresponding law in respect of a forfeiture
20 offence--
(i) are to be transmitted to the Chief
Commissioner of Police of Victoria;
and
(ii) when no longer required for the
25 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
30 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 sub-section (1) is entitled to
its return.
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(3) The right referred to in sub-section (2) is
enforceable by action in detinue in a court of
competent jurisdiction.
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5
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PART 14--MONEY LAUNDERING
121. Definitions
In this Part--
"proceeds of crime" means--
5 (a) proceeds of a forfeiture 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
10 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--
15 (i) occurred outside Victoria; and
(ii) would, if they had occurred in
Victoria, have constituted an
offence referred to in paragraph
(a);
20 "transaction" includes the receiving or making
of a gift.
122. Money laundering
(1) A person who engages in money laundering is
guilty of an indictable offence and liable to level 3
25 imprisonment (20 years maximum) or a level 3
fine (2400 penalty units maximum) or to both.
(2) A person engages in money laundering if, and
only if--
(a) the person engages, directly or indirectly, in
30 a transaction that involves money, or other
property, that is proceeds of crime; or
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(b) the person receives, possesses, conceals,
disposes of or brings into Victoria any
money, or other property, that is proceeds of
crime--
5 and the person knows, or ought reasonably to
know, that the money or other property is derived
or realised, directly or indirectly, from some form
of unlawful activity.
(3) It is a defence to a prosecution for an offence
10 under this section if the defendant satisfies the
court that the defendant engaged in money
laundering to assist the enforcement of a law of
the Commonwealth, a State or a Territory.
123. Possession etc. of property suspected of being
15 proceeds of crime
(1) A person must not receive, possess, conceal,
dispose of or bring into Victoria any money, or
other property that may reasonably be suspected
of being proceeds of crime.
20 Penalty: Level 7 imprisonment (2 years
maximum) or a level 7 fine (240
penalty units maximum) or both.
(2) It is a defence to a charge for an offence against
sub-section (1) if the defendant satisfies the court
25 that the defendant had reasonable grounds for not
suspecting that the property referred to in the
charge was proceeds of crime.
_______________
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PART 15--INTERSTATE ORDERS AND WARRANTS
124. Definition
In this Part--
"proceeds of crime" means--
5 (a) proceeds of a forfeiture 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
10 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--
15 (i) occurred outside Victoria; and
(ii) would, if they had occurred in
Victoria, have constituted an
offence referred to in paragraph
(a).
20 125. 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
25 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
30 made it, may be registered in the Supreme Court
by the applicant for the order or by the DPP or by
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a person who is prescribed for the purposes of this
sub-section or a person of a class of persons so
prescribed.
(2) A copy of any amendments made to an interstate
5 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
10 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.
15 (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
20 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 5 days unless
the sealed copy has been registered by then.
25 126. 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
30 registration.
(2) A registered interstate restraining order is, for the
purposes of this Act (other than sections 19, 20,
26, 27, 28, 72 and 142) to be taken to be a
restraining order made under section 18.
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127. Duration of registration
An interstate forfeiture order or an interstate
restraining order ceases to be registered under this
Act if--
5 (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
10 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
15 (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
20 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.
25 129. Charge on property subject to registered interstate
restraining order
(1) If--
(a) in reliance on the charging, or the proposed
charging of a person with, or the conviction
30 of a person of, an interstate offence, an
interstate restraining order has been made;
and
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(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
5 registration in Victoria of the interstate pecuniary
penalty order under the Service and Execution of
Process Act 1901 of the Commonwealth
(whichever is the later), a charge on all the
property to which the restraining order applies to
10 secure the payment of the pecuniary penalty.
(2) A charge created by sub-section (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
15 have effect.
(3) Sub-sections (4) and (5) of section 72 apply to a
charge created by sub-section (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).
20 130. 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.
131. Interstate orders and search warrants
25 (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
30 person from whose possession it was seized;
or
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(b) directing that that person be allowed access
to the property--
the order must, as far as possible, be given effect
to in Victoria.
5 (2) If--
(a) property to which this sub-section applies
has been seized in another State or a
Territory under a search warrant issued
under a corresponding law in reliance on the
10 commission of a forfeiture 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 in respect of the
15 property; and
(c) the court refuses to make the order or
excludes the property from the operation of
any restraining order made by it--
the court must make an order directing that the
20 property be returned to the person from whose
possession it was seized.
(3) If property to which this sub-section applies has
been seized in another State or a Territory under a
search warrant issued under a corresponding law
25 in reliance on the commission of a forfeiture
offence, an automatic forfeiture offence or a civil
forfeiture offence, the person from whose
possession the property was seized may apply to
the Magistrates' Court for an order--
30 (a) directing that the property be returned to that
person; or
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(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.
5 (4) The applicant for an order under sub-section (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) Sub-sections (2) and (3) apply to all property
10 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
15 indirectly, by any person, in relation to an
interstate offence.
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PART 16--MISCELLANEOUS
132. Standard of proof
Any question of fact to be decided by a court on
an application under this Act is to be decided on
5 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.
10 (2) Despite sub-section (1), the rules regulating the
practice and procedure of a court in civil
proceedings do not apply to a proceeding on an
application under this Act.
(3) The fact that criminal proceedings have been
15 instituted or commenced is not a ground on which
a court may stay proceedings under this Act.
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
20 the Public Account and the following must be
paid into it--
(a) all money appropriated by Parliament for the
purposes of the Fund;
(b) all money received by the State from the
25 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.
30 (2) The Minister may pay out of the Fund any sums
that he or she deems fit, and subject to any
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conditions, limitations or restrictions that he or
she determines, for or towards--
(a) organisations involved in providing
information, support or assistance to victims
5 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
10 (c) the development, implementation, co-
ordination or evaluation of crime prevention
and control programs; or
(d) criminological research.
(3) All money realised under a forfeiture order, a civil
15 forfeiture order, a pecuniary penalty order or by
automatic forfeiture under section 35 that is not
required to be paid to a person or body under
section 75(1) must be paid into the Consolidated
Fund.
20 135. Conversion costs
(1) The conversion costs that may be deducted from
the proceeds of a forfeiture order, a civil forfeiture
order or a pecuniary penalty order or automatic
forfeiture under section 35 are the reasonable
25 costs and expenses incurred in locating, storing,
maintaining or disposing of, or otherwise in
connection with the conversion into money of,
property to which the order or automatic forfeiture
applies.
30 (2) Conversion costs must be paid by the State to the
person who, or body which, incurred the costs.
136. Stamp duty not payable
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No stamp duty is payable under the Stamps Act
1958 in respect of the transfer of any property
under this Act.
137. Service of documents
5 (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
10 (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
15 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
20 under the Corporations Law--
(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
25 (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
30 Incorporation Act 1981, in accordance with
section 48 of that Act.
(2) If it appears to a court, by evidence on oath or by
affidavit, that service cannot be promptly effected,
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the court may make an order for substituted
service.
138. Maximum fine for body corporate
(1) If a body corporate is found guilty of an offence
5 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
10 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
15 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
20 requires within the time specified by the Minister.
140. Secrecy
(1) Except as provided by this section, a person who
obtains information, or to whom information is
communicated or given, under Part 13 must not
25 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
30 in connection with this Act; or
(c) in connection with the enforcement of the
laws of the State.
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Penalty: Level 7 imprisonment (2 years
maximum) or a level 7 fine (240
penalty units maximum) or both.
(2) A person who obtains information, or to whom
5 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
10 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.
(3) Nothing in this section prevents a law
15 enforcement agency which obtains information, or
to which information is communicated or given,
under Part 13 from communicating or giving the
information to another law enforcement agency or
to a prescribed person, or a member of a
20 prescribed class of persons, authorised by the
Minister for the purposes of this sub-section for
the purpose of any legal proceedings arising out of
this Act or a corresponding law or in connection
with the enforcement of the laws of a State, a
25 Territory or the Commonwealth.
(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.
30 141. Court may hear applications at same time
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(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 forfeiture offence--
5 (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,
10 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.
15 (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.
20 142. 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
25 (b) the Supreme Court or the County Court has
made, or refused to make, an order excluding
the interest from the operation of section
35--
may appeal against that order or refusal--
30 (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
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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
5 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
10 of which--
(a) a civil forfeiture order is made; or
(b) the Supreme Court has made, or refused to
make, an exclusion order under section 24 or
54(1)--
15 may appeal against that order or refusal in the
same manner as if the person had been convicted
of the civil forfeiture offence in reliance on which
the order was made and the order were, or were
part of, the sentence imposed in respect of the
20 offence.
(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
25 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 50(1),
52(1) or 54(1) or a refusal to make an exclusion
30 order under section 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.
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(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
5 of the Supreme Court to make a civil
forfeiture order; or
(b) the making of an exclusion order under
section 24 or 54(1); or
(c) the making of a pecuniary penalty order in
10 relation to a civil forfeiture offence or
against the refusal to make a pecuniary
penalty order in relation to a civil forfeiture
offence--
in the same manner as if the order or refusal were,
15 or were part of, a sentence imposed in respect of
the offence.
(6) On appeal, a civil forfeiture order, an exclusion
order under section 24 or 54(1) or a refusal to
make an exclusion order under section 24 or 54(1)
20 may be confirmed, discharged or varied or the
matter may be remitted for re-hearing to the
Supreme Court, with or without any direction in
law.
143. Provision of legal aid
25 (1) If a court is satisfied at any time that--
(a) a restraining order has been made in respect
of property of a person and the restraining
order is in force; and
(b) the person is in need of legal assistance in
30 respect of any legal proceeding, whether
civil or criminal, and whether in respect of a
charge to which the restraining order relates
or otherwise, because the person is unable to
afford the full cost of obtaining legal
35 assistance from a private practitioner from
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unrestrained property or income of the
person--
the court may order Victoria Legal Aid to provide
legal assistance to the person, on any conditions
5 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
10 in accordance with an order made under sub-
section (1).
(3) If--
(a) a court makes an order under this section;
and
15 (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
20 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
25 (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
30 estate in fee simple or an equity of
redemption, either solely or as a joint tenant
or a tenant in common, in land not under that
Act--
Victoria Legal Aid may secure the payment of any
35 amount which has not been paid (including any
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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.
5 (4) A charge taken out by Victoria Legal Aid is to be
for the benefit of the Legal Aid Fund.
(5) Sections 47B, 47C, 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
10 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 sub-
section (2) applies or otherwise, to recover that
15 amount, then the State must pay that amount to
Victoria Legal Aid to the value of any property
forfeited or the amount of any penalty paid to the
State (less conversion costs and any amount paid
under section 31) in relation to the offence in
20 reliance on which the restraining order was made
and the Consolidated Fund is, to the necessary
extent, appropriated accordingly.
144. Operation of other laws not affected
Nothing in this Act limits or restricts the operation
25 of any other law providing for the forfeiture of
property.
145. Supreme Court--limitation of jurisdiction
It is the intention of sections 55(10), 56(6), 57(6),
106(3) and 119(7) to alter or vary section 85 of
30 the Constitution Act 1975.
146. Regulations
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(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
5 Act.
(2) The regulations--
(a) may be of general or limited application; and
(b) may differ according to differences in time,
place or circumstance.
10 147. 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--
15 (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
20 facts may be given in a proceeding under this
Act.
_______________
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PART 17--AMENDMENT OF SENTENCING ACT 1991
148. New Part 2B inserted
After Part 2A of the Sentencing Act 1991
insert--
5 'PART 2B--CONTINUING CRIMINAL
ENTERPRISE OFFENDERS
6G. Application of Part
This Part applies to a court in sentencing a
continuing criminal enterprise offender for a
10 continuing criminal enterprise offence.
6H. Definitions for purposes of this Part
(1) In this Part--
"continuing criminal enterprise offence"
means an offence referred to in
15 Schedule 1A;
"continuing criminal enterprise offender"
means an offender who is found guilty
of--
(a) a continuing criminal enterprise
20 offence and who in another trial or
hearing or more than one other
trial or hearing had been found
guilty of 2 or more relevant
offences;
25 (b) 2 continuing criminal enterprise
offences and who in another trial
or hearing had been found guilty
of a relevant offence;
(c) 3 or more continuing criminal
30 enterprise offences;
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"relevant offence", in relation to a
continuing criminal enterprise offence,
means a continuing criminal enterprise
offence of which an offender has been
5 found guilty within the period of 10
years before the date on which the later
offence was committed.
(2) For the purposes of the definition of
"relevant offence" in sub-section (1), if an
10 offence of which an offender has been found
guilty was committed between two dates, the
offence was committed on the earlier date.
6I. Increased maximum penalty for CCE
offences
15 (1) A continuing criminal enterprise offender is
liable, for a continuing criminal enterprise
offence, to a maximum term of
imprisonment of 2 times the length of the
maximum term prescribed for the offence or
20 25 years, whichever is the lesser.
(2) This section has effect despite anything to
the contrary in this or any other Act.
6J. CCE offender status to be noted on record
(1) A court that sentences a continuing criminal
25 enterprise offender for a continuing criminal
enterprise offence must, at the time of doing
so, cause to be entered in the records of the
court in respect of that offence the fact that
the offender was sentenced for a continuing
30 criminal enterprise offence.
(2) Despite anything to the contrary in the
Evidence Act 1958 or the Crimes Act 1958,
a statement of the fact that an offender was
sentenced for a continuing criminal
35 enterprise offence as a continuing criminal
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enterprise offender may be included in a
certificate issued under section 87(1) of the
Evidence Act 1958 or in a certified
statement of conviction issued under section
5 395 of the Crimes Act 1958.'.
149. New Schedule 1A inserted
After Schedule 1 to the Sentencing Act 1991
insert--
"SCHEDULE 1A
10 CONTINUING CRIMINAL ENTERPRISE OFFENCES
1. An offence against any of the following provisions of the
Crimes Act 1958:
(a) section 74(1) (theft) where the value of the property
stolen is $50 000 or more;
15 (b) section 75(1) (robbery) where the value of the
property stolen is $50 000 or more;
(c) section 75A(1) (armed robbery) where the value of
the property stolen is $50 000 or more;
(d) section 81(1) (obtaining property by deception) where
20 the value of the property obtained is $50 000 or more;
(e) section 82(1) (obtaining financial advantage by
deception) where the value of the financial advantage
obtained is $50 000 or more;
(f) section 83(1) (false accounting) where the potential
25 gain or loss is $50 000 or more;
(g) section 88(2) (handling stolen goods) where the value
of the goods handled is $50 000 or more;
(h) section 197(1), (2) or (3) (destroying or damaging
property) where the value of the property destroyed or
30 damaged is $50 000 or more.
2. Any automatic forfeiture offence within the meaning of the
Confiscation Act 1997 where the value of the property in
respect of which the offence is committed is $50 000 or
more.
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3. The common law offence of conspiracy to defraud where
the property, financial advantage or economic loss in respect
of which the offence is committed is $50 000 or more.".
_______________
5
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PART 18--CONSEQUENTIAL AMENDMENTS AND
TRANSITIONAL PROVISIONS
150. Repeal
(1) The Crimes (Confiscation of Profits) Act 1986
5 (except Parts 1 and 2A) is repealed.
(2) Parts 1 and 2A of the Crimes (Confiscation of
Profits) Act 1986 are repealed.
(3) The Crimes (Confiscation of Profits)
(Amendment) Act 1991 is repealed.
10 151. Crimes Act 1958
In section 70AA(9) of the Crimes Act 1958, for
"Crimes (Confiscation of Profits) Act 1986"
substitute "Confiscation Act 1997".
152. Drugs, Poisons and Controlled Substances Act 1981
15 (1) In the Drugs, Poisons and Controlled
Substances Act 1981--
(a) in section 122A(1), for "Crimes
(Confiscation of Profits) Act 1986"
substitute "Confiscation Act 1997";
20 (b) in section 125, omit "and all moneys
received or recovered by the Crown pursuant
to the Crimes (Confiscation of Profits) Act
1986 in relation to offences under section 71,
71A, 71B, 72, 73, 79(1) or 80(1) of this
25 Act";
(c) in section 126(1)(a), omit "and all moneys
received or recovered by the Crown pursuant
to the Crimes (Confiscation of Profits) Act
1986 in relation to offences under section 71,
30 71A, 71B, 72, 73, 79(1) or 80(1) of this
Act";
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(d) in section 126(1), after paragraph (a)
insert--
"(b) all money appropriated by Parliament
for the purposes of the Fund;";
5 (e) in section 126(2), omit ", with the approval
of the Governor in Council,".
(2) In section 126 of the Drugs, Poisons and
Controlled Substances Act 1981, for sub-
sections (3) and (4) substitute--
10 "(3) The conversion costs that may be deducted
under section 126(1)(a) are the reasonable
costs and expenses incurred in locating,
storing, maintaining or disposing of, or
otherwise in connection with the conversion
15 into money of, property forfeited under this
Act.
(4) Conversion costs must be paid by the State
to the person who, or body which, incurred
the costs.".
20 153. Evidence Act 1958
In section 149A of the Evidence Act 1958, for
"Crimes (Confiscation of Profits) Act 1986"
substitute "Confiscation Act 1997".
154. Magistrates' Court Act 1989
25 In Schedule 4 to the Magistrates' Court Act
1989, omit item 50.
155. Road Safety Act 1986
In section 92(3)(g) of the Road Safety Act 1986,
for "Crimes (Confiscation of Profits) Act 1986"
30 substitute "Confiscation Act 1997".
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156. Sentencing Act 1991
In the Sentencing Act 1991--
(a) in section 5(2A)(a)--
(i) for "Crimes (Confiscation of Profits)
5 Act 1986" substitute "Confiscation
Act 1997";
(ii) in sub-paragraph (iii), after "realised,"
insert "or substantially derived or
realised,";
10 (b) in section 5(2A)(b), after "realised," insert
"or substantially derived or realised,";
(c) in section 5(2A), after paragraph (d)
insert--
"(e) must not have regard to any property
15 forfeited under automatic forfeiture or a
pecuniary penalty order made in
relation to an automatic forfeiture
offence under that Act.";
(d) in section 5(2B) for "confiscation order
20 made under the Crimes (Confiscation of
Profits) Act 1986" substitute "forfeiture
order or civil forfeiture order made under, or
automatic forfeiture occurring by operation
of, the Confiscation Act 1997";
25 (e) in section 50(3) for "confiscation of the
proceeds of the crime" substitute "forfeiture
of the offender's property or the automatic
forfeiture of the offender's property by
operation of law";
30 (f) in section 85(1), for "An" substitute
"Subject to section 30 of the Confiscation
Act 1997, an";
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(g) in section 87, for "An" substitute "Subject to
section 30 of the Confiscation Act 1997,
an".
157. Transitional
5 (1) Subject to sub-sections (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
proceeding is commenced, or is to be commenced,
10 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
15 they are alleged to have been committed after the
commencement of Part 4.
(3) For the purposes of sub-section (2), if an offence
is alleged to have been committed between two
dates and Part 4 commences on a date between
20 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
25 commencement of that Part, irrespective of when
the offence is alleged to have been committed.
(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
30 that provision before its repeal and that
application may continue to be dealt with and
determined, or may be withdrawn, as if this Act
had not been passed.
(6) The repeal by this Act of a provision of the
35 Crimes (Confiscation of Profits) Act 1986 does
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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
5 which sub-section (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
10 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 sub-
15 section (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
20 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
25 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
30 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 section
125 or 126 of the Drugs, Poisons and Controlled
35 Substances Act 1981 must be paid into that Fund.
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(10) All money realised after the commencement of
section 152(1) under a confiscation order made
under the Crimes (Confiscation of Profits) Act
1986 that, if that section had not come into
5 operation, would have been paid into the Drug
Rehabilitation and Research Fund under section
125 or 126 of the Drugs, Poisons and Controlled
Substances Act 1981 must be paid into that Fund
and may be dealt with in accordance with the
10 Drugs, Poisons and Controlled Substances Act
1981.
(11) The provisions of this section are in addition to,
and not in derogation from, the provisions of the
Interpretation of Legislation Act 1984.
15 _______________
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SCHEDULES
SCHEDULE 1
FORFEITURE OFFENCES
1. An indictable offence against the law of Victoria.
5 2. An automatic forfeiture offence.
3. An offence against section 27 of the Archaeological and Aboriginal
Relics Preservation Act 1972 (purchase and sale of portable relics).
4. An offence against any of the following provisions of the Casino
Control Act 1991:
10 (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)
15 (Enforcement) Act 1995:
(a) section 8 (exhibition of RC and X films);
(b) section 9 (exhibition of unclassified, RC, X, R and MA films);
(c) section 15 (selling unclassified, RC and X films);
(d) section 23(1) or (2) (possession or copying of unclassified, RC and
20 X films for purpose of sale or exhibition);
(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);
25 (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
30 computer game for purpose of sale or demonstration);
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(l) section 57(1) (publication or transmission of objectionable
material).
6. An offence against any of the following provisions of the Fisheries Act
1968:
5 (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
10 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);
15 (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);
20 (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);
25 (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.);
30 (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);
(h) section 67(3) (contravention of regulation or fisheries notice
35 prohibition);
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(i) section 68A(1), (2) or (5) (offences in relation to size and catch
limits);
(j) section 68A(3) (offence in relation to size or catch limit) where the
penalty imposed is 50 penalty units or more;
5 (k) section 71(1) (unauthorised taking etc. of protected aquatic biota);
(l) section 76 (offences concerning noxious aquatic species);
(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
10 aquaculture activities);
(o) section 114(3) (contravention of regulation or fisheries notice
prohibition);
(p) section 115 (interference with commercial fishing equipment or
aquaculture equipment);
15 (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);
20 (t) section 119(1) (blocking passage of fish);
(u) section 130(4) (failure to comply with order prohibiting person
from being on certain boats or in certain places);
(v) section 139 (taking fish etc. from research station or hatchery on
Crown land);
25 (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).
30 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).
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10. An offence against any of the following provisions of the Gaming and
Betting Act 1994:
(a) section 117(1) or (2) (inducements, cheating etc.);
(b) section 118 (forgery etc.);
5 (c) section 119 (extending credit etc.).
11. An offence against any of the following provisions of the Gaming
Machine Control Act 1991:
(a) section 67(1) or (2) (payments to venue operator by manufacturer
or supplier of gaming equipment);
10 (b) section 81 (extending credit for playing gaming machine);
(c) section 146(1), (2), (3) or (4) (inducements, cheating etc.);
(d) section 147(1) or (2) (bribery of authorised person).
12. An offence against any of the following provisions of the Gaming
No. 2 Act 1997:
15 (a) section 7(2) (lotteries prohibited);
(b) section 21(b) (conducting session of bingo games otherwise than
in accordance with Act and minor gaming permit).
13. An offence against any of the following provisions of the Lotteries
Gaming and Betting Act 1966:
20 (a) section 18(1) (owning or occupying betting house);
(b) section 21 (exhibiting placards or advertising betting houses);
(c) section 22 (advertising as to betting);
(d) section 23(1) (betting in street etc.);
(e) section 26 (making bet with or inviting minor to bet an offence);
25 (f) section 39 (offences in respect of totalizators);
(g) section 40(1) (publication etc. of information concerning betting
etc.);
(h) section 41(1) (posting up betting placards and notices);
(i) section 42(1) (communicating certain racing information while
30 race-meeting is being held);
(j) section 66B(1) (possession of instrument of betting).
14. An offence against any of the following provisions of the Racing Act
1958:
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(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
5 1975:
(a) section 41(1) or (2) (taking or possessing etc. endangered
wildlife);
(b) section 42(1) or (2) (taking or possessing etc. notable wildlife);
(c) section 43(1) or (2) (taking or possessing etc. protected wildlife);
10 (d) section 43A (possessing unlawfully taken wildlife);
(e) section 45 (taking eggs of protected wildlife);
(f) section 46 (trapping wild duck etc.);
(g) section 47(1) (taking protected wildlife in close season);
(h) section 48(1) (setting dog on wildlife not being game);
15 (i) section 49(2) (contravening Order prohibiting possession etc. of
wildlife);
(j) section 50(1) (importing or exporting wildlife without permit);
(k) section 52 (release of wildlife and animals from captivity or
confinement);
20 (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);
25 (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.);
30 (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).
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__________________
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SCHEDULE 2
AUTOMATIC FORFEITURE OFFENCES
1. An offence against any of the following provisions of the Drugs,
Poisons and Controlled Substances Act 1981:
5 (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
10 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)
15 or (b);
(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
20 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:
25 (a) section 81(1) (obtaining property by deception) where the value of
the property in respect of which the offence is committed is
$100 000 or more;
(b) section 82(1) (obtaining financial advantage by deception) where
the value of the financial advantage obtained is $100 000 or more;
30 (c) section 321(1) where the conspiracy is to commit an offence
referred to in paragraph (a) or (b).
3. An offence against section 122(1) of the Confiscation Act 1997
(money laundering) where the money or other property is proceeds of
an offence referred to in item 1 or 2.
35 4. An offence of--
(a) conspiracy to commit; or
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(b) aiding, abetting, counselling or procuring, or being in any way
knowingly concerned in, the commission of--
an offence referred to in item 3.
5. An offence of attempting to commit any offence referred to in items
5 1 to 3.
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 the property,
10 financial advantage or economic loss in respect of which the offence is
committed is $100 000 or more.
__________________
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SCHEDULE 3
CIVIL FORFEITURE OFFENCES
1. An offence against any of the following provisions of the Drugs,
Poisons and Controlled Substances Act 1981:
5 (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
10 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)
15 or (b);
(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
20 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.
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Notes
Act No.
NOTES
1
Section 23 enables a court to declare that a restraining order, to the extent to
which it relates to certain property, shall be disregarded for the purposes
of section 35.
2
Section 25 enables a court to declare that a restraining order, to the extent to
which it relates to certain property, shall be disregarded for the purposes
of section 38.
By Authority. Government Printer for the State of Victoria.
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