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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Confiscation (Amendment) Act 2002
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Principal Act 2
PART 2--AMENDMENTS TO THE PRINCIPAL ACT 3
4. Definitions amended 3
5. New definitions inserted 4
6. Magistrates' Court jurisdiction 5
7. County Court jurisdiction 5
8. New sections 19A to 19E inserted 5
19A. Notice requiring declaration of property interests 5
19B. What must be included in a declaration of property
interests? 6
19C. Offences 6
19D. Court directions to provide information 7
19E. Admissibility of statement 8
9. Further orders relating to existing restraining order 8
10. New Part 2A inserted--freezing orders 9
PART 2A--FREEZING ORDERS 9
31A. Definition 9
31B. Chief Commissioner of Police may authorise police to
apply for freezing orders 9
31C. Freezing order 10
31D. Application for freezing order 10
31E. Application may be made by telephone etc. 12
31F. Making of freezing order 13
31G. Notice of freezing order 15
31H. When does a freezing order take effect? 17
31I. Extension of freezing orders 17
31J. Report to Magistrates' Court on freezing order 19
31K. Failure to comply with freezing order 20
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Clause Page
31L. Offence to disclose existence of freezing order 20
31M. Freezing order to be disregarded for application of
section 122 23
11. Forfeiture where defendant has absconded 23
12. New Division 1A of Part 3 inserted 23
Division 1A--Tainted Property Substitution Declaration 23
34A. Interpretation 23
34B. Application for tainted property substitution
declaration 23
34C. Court may make tainted property substitution
declaration 25
13. New sections 35A to 35C inserted 26
35A. Automatic forfeiture offences--application for court
declaration 26
35B. Applicant to notify defendant 26
35C. Court may make declaration 27
14. Declaration that property has been forfeited 27
15. Application for civil forfeiture 27
16. Disposal of property 27
17. Disposal orders 28
18. New Part 10A inserted--property management 28
PART 10A--PROPERTY MANAGEMENT 28
78A. Memorandum of understanding 28
78B. Certificate of responsibility and power 29
19. New section 79A inserted 30
79A. Seizure warrants--public places 30
20. Consequential amendments--seizure warrants 31
21. New section 84A inserted 32
84A. Duty to show seizure warrant 32
22. References to seizure warrants 33
23. New section 88A inserted 33
88A. Notice of execution of seizure warrant 33
24. Further references to seizure warrants 33
25. New sections 95A to 95E inserted 34
95A. Application for property seized under search
warrants under other Acts to be held or retained
under this Act 34
95B. What must be in the application? 35
95C. Court may make declaration 36
95D. Notice of declaration 36
95E. Effect of declaration 37
26. Return of seized property--applications and seizure warrants 37
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Clause Page
27. New Part 11A inserted--property management warrants 39
PART 11A--PROPERTY MANAGEMENT WARRANTS 39
Division 1--Search and Inspection Warrants 39
97A. Application for search and inspection warrant 39
97B. Search and inspection warrant 40
97C. Record of proceedings for search and inspection
warrant 42
97D. Announcement before entry 42
97E. Copy of search and inspection warrant to be given to
occupier 42
97F. Use of assistants to execute search and inspection
warrant 43
97G. Application of Magistrates' Court Act 1989 43
97H. Expiry of search and inspection warrant 44
97I. Report on execution of warrant etc. 44
97J. Copy of inventory to be given 45
97K. Defects in search and inspection warrant 46
97L. Obstruction or hindrance of person executing search
and inspection warrant 46
Division 2--Search and Seizure Warrants 46
97M. Application for search and seizure warrant 46
97N. Search and seizure warrant 47
97O. Record of proceedings for search and seizure warrant 48
97P. Announcement before entry 49
97Q. Copy of search and seizure warrant to be given to
occupier 49
97R. Use of assistants to execute search and seizure warrant 50
97S. Application of Magistrates' Court Act 1989 50
97T. Expiry of search and seizure warrant 50
97U. Report on execution of search and seizure warrant etc. 51
97V. Defects in search and seizure warrant 52
97W. Obstruction or hindrance of person executing search
and seizure warrant 52
28. Examination orders 52
29. New Division 3A of Part 13 inserted 53
Division 3A--Information Notices 53
118A. Definition 53
118B. Chief Commissioner of Police may authorise police to
issue information notices 54
118C. Who can issue information notices? 54
118D. Issuing information notices--authorised member of
police force 54
118E. Issuing information notices--prescribed person 55
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Clause Page
118F. Information notice to be signed and reasons recorded 55
118G. What can an information notice require? 56
118H. What must the information notice contain? 57
118I. How is an information notice given? 58
118J. Offence to fail to comply with information notice 58
118K. Offence to disclose existence of information notice 58
118L. Immunity from suit 61
118M. Giving of information notice to be disregarded for
application of section 122 61
30. New Division 4A of Part 13 inserted 62
Division 4A--Sharing of Information 62
119A. Communication of information between law
enforcement agencies 62
31. New Division 6 of Part 13 inserted 62
Division 6--Document Requests 62
120A. When a document request may be made 62
120B. Document request 63
120C. Offences 63
120D. Requested documents to be provided--Court order 64
120E. Return of documents 64
32. Specified items forfeited 64
33. New section 139A inserted 65
139A. Reports to the Minister 65
34. Secrecy 66
35. New section 143A inserted 67
143A. Delegation 67
36. Supreme Court--limitation of jurisdiction 67
37. Forfeiture offences 67
38. New items 1(ac) and (ad) inserted--trafficking in drug of
dependence 68
39. Item 2 substituted and new items 2A to 2C inserted--
automatic forfeiture offences 69
40. Money laundering 77
41. Attempts 77
42. Item 7 substituted and new items 8 and 9 inserted--automatic
forfeiture offences 78
PART 3--TRANSITIONAL PROVISIONS 79
43. New sections 158 to 172 inserted 79
158. Confiscation (Amendment) Act 2002--declaration
of property interests transitional provision 79
159. Confiscation (Amendment) Act 2002--freezing
orders transitional provision 79
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Clause Page
160. Confiscation (Amendment) Act 2002--tainted
property substitution declaration transitional
provisions 79
161. Confiscation (Amendment) Act 2002--disposal
orders transitional provision 80
162. Confiscation (Amendment) Act 2002--property
seized under other Acts transitional provision 80
163. Confiscation (Amendment) Act 2002--examination
orders transitional provision 80
164. Confiscation (Amendment) Act 2002--document
requests transitional provisions 80
165. Confiscation (Amendment) Act 2002--proceeds
of crime transitional provision 81
166. Confiscation (Amendment) Act 2002--Schedule 1
offences transitional provisions 81
167. Confiscation (Amendment) Act 2002--Schedule 2--
drug trafficking offences transitional provisions 82
168. Confiscation (Amendment) Act 2002--Schedule 2
offences transitional provisions 82
169. Confiscation (Amendment) Act 2002--Schedule 2--
money laundering transitional provisions 83
170. Confiscation (Amendment) Act 2002--Schedule 2--
attempts transitional provisions 84
171. Confiscation (Amendment) Act 2002--Schedule 2--
common law offences transitional provisions 84
172. Interpretation of Legislation Act 1984 85
PART 4--AMENDMENTS TO OTHER ACTS 86
Division 1--Crimes Act 1958 86
44. Seizure of tainted property under Crimes Act warrant 86
45. New sections 465A to 465E inserted 86
465A. Notice that seized thing is being held for purposes of
Confiscation Act 1997 86
465B. Application for tainted property to be held or
retained--return of warrant to court 87
465C. Court may make direction 87
465D. Notice of direction under section 465C 88
465E. Effect of directions under sections 465(1B) and 465C 89
Division 2--Drugs, Poisons and Controlled Substances Act 1981 89
46. New definition inserted 89
47. Seizure of tainted property under Drugs, Poisons and
Controlled Substances Act 1981 warrant 90
48. New sections 81A to 81E inserted 91
81A. Notice that seized thing or document is being held for
purposes of Confiscation Act 1997 91
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Clause Page
81B. Application for tainted property to be held or retained--
return of warrant to court 92
81C. Court may make direction 92
81D. Notice of direction under section 81C 93
81E. Effect of directions under sections 81(1A) and 81C 93
49. Amendment of Schedule Ten warrant--Drugs, Poisons and
Controlled Substances Act 1981 94
50. New Part 3 of Schedule Eleven to the Drugs, Poisons and
Controlled Substances Act 1981 inserted 94
Division 3--Sentencing Act 1991 97
51. Property forfeited under automatic forfeiture 97
ENDNOTES 98
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PARLIAMENT OF VICTORIA
Initiated in Assembly 30 October 2002
A BILL
to make various amendments to the Confiscation Act 1997, to
consequentially amend the Crimes Act 1958, the Drugs, Poisons and
Controlled Substances Act 1981 and the Sentencing Act 1991 and
for other purposes.
Confiscation (Amendment) Act 2002
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The main purpose of this Act is to make various
amendments to the Confiscation Act 1997
5 relating to the asset confiscation regime under that
Act.
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Confiscation (Amendment) Act 2002
Act No.
Part 1--Preliminary
s. 2
2. Commencement
(1) Subject to sub-section (2), this Act comes into
operation on a day or days to be proclaimed.
(2) If a provision referred to in sub-section (1) does
5 not come into operation before 1 October 2003, it
comes into operation on that day.
3. Principal Act
See: In this Act, the Confiscation Act 1997 is called
Act No.
the Principal Act.
108/1997.
Reprint No. 2
as at
13 September
2001
and
amending
Act Nos
61/2001 and
35/2002.
LawToday:
www.dms.
dpc.vic.
gov.au
__________________
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Confiscation (Amendment) Act 2002
Act No.
Part 2--Amendments to the Principal Act
s. 4
PART 2--AMENDMENTS TO THE PRINCIPAL ACT
4. Definitions amended
(1) In section 3 of the Principal Act, for the definition
of "automatic forfeiture offence" substitute--
5 ' "automatic forfeiture offence" means an
offence referred to in Schedule 2 and--
(a) if circumstances are specified in
Schedule 2 in relation to that offence,
means an offence committed in those
10 circumstances; and
(b) in Parts 11, 13 and 14, includes an
interstate offence;'.
(2) In section 3 of the Principal Act, in the definition
of "financial institution"--
15 (a) in paragraph (d), for "Commonwealth;"
substitute "Commonwealth; or";
(b) after paragraph (d) insert--
"(e) a casino operator within the meaning of
the Casino Control Act 1991; or
20 (f) the holder of the wagering licence
under Part 2 of the Gaming and
Betting Act 1994;".
(3) In section 3 of the Principal Act, in the definition
of "law enforcement agency", after paragraph (b)
25 insert--
"(ba) any other authority or person responsible for
the performance of functions or activities
under this Act directed to--
(i) the management of property seized
30 under this Act or property in respect of
which a restraining order is made (other
than a trustee); or
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Confiscation (Amendment) Act 2002
Act No.
Part 2--Amendments to the Principal Act
s. 5
(ii) the enforcement of this Act; or
(iii) the enforcement of orders made under
this Act; or".
(4) In section 3 of the Principal Act, in the definition
5 of "premises", after "any place" insert "(other
than a public place)".
5. New definitions inserted
(1) In section 3 of the Principal Act insert the
following definitions--
10 ' "automatic forfeiture quantity" has the same
meaning as it has in the Drugs, Poisons and
Controlled Substances Act 1981;
"document request" means a request for
documents made under Division 6 of Part 13
15 in relation to property for which the
Secretary has responsibility under a
memorandum of understanding entered into
under section 78A;
"freezing order" means an order made under
20 section 31F;
"information notice" means a notice issued
under section 118D or 118E;
"occupier", in Part 11A, means a person who
appears to be an occupier of, or to be in
25 charge of, the premises and to be aged
18 years or more;
"Secretary" means the Secretary to the
Department of Justice;
"seizure warrant" means a warrant issued under
30 section 79A;'.
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s. 6
(2) At the end of section 3 of the Principal Act
insert--
'(2) If under the Public Sector Management
and Employment Act 1998 the name of the
5 Department of Justice is changed, the
reference in sub-section (1) in the definition
of "Secretary" to that Department must, from
the date when the name is changed, be
treated as a reference to the Department by
10 its new name.'.
6. Magistrates' Court jurisdiction
In section 12 of the Principal Act, after sub-
section (1) insert--
"(1A) Despite the jurisdictional limit of the
15 Magistrates' Court in civil proceedings, the
Magistrates' Court may make a freezing
order in respect of an account held with a
financial institution, irrespective of the
amount held in that account.".
20 7. County Court jurisdiction
In section 12(6) of the Principal Act, for
"Supreme Court has" insert "Supreme Court and
the County Court have".
8. New sections 19A to 19E inserted
25 After section 19 of the Principal Act insert--
"19A. Notice requiring declaration of property
interests
(1) If a restraining order is made in respect of
property, a member of the police force must
30 give a notice to each person who the
applicant for the restraining order believes
has an interest in that property requiring the
person to give to the member of the police
force a written declaration of property
35 interests.
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Confiscation (Amendment) Act 2002
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s. 8
(2) A notice under sub-section (1) must--
(a) be in the prescribed form; and
(b) state the effect of section 19C.
19B. What must be included in a declaration of
5 property interests?
(1) A person who has been given a notice under
section 19A must provide a written
declaration of property interests that states
whether that person--
10 (a) has an interest in the property; and
(b) believes that any other person has an
interest in the property.
(2) If the person making the declaration of
property interests believes that any other
15 person has an interest in the property, the
person making the declaration must state the
name of every such person in the declaration.
19C. Offences
(1) A person who is given a notice under section
20 19A must not, without reasonable excuse,
fail to give the declaration of property
interests required by that notice to a member
of the police force within 14 days after the
notice is given to the person.
25 Penalty: Level 9 fine (60 penalty units
maximum).
(2) A person who is given a notice under section
19A must not make a statement in the
declaration of property interests required by
30 that notice that is false or misleading in a
material particular.
Penalty: Level 9 fine (60 penalty units
maximum).
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Confiscation (Amendment) Act 2002
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s. 8
19D. Court directions to provide information
(1) If a person who has been given a notice
under section 19A--
(a) is convicted of an offence under section
5 19C(1) or (2); and
(b) has not, prior to that conviction,
provided the information that should
have been provided in a declaration of
property interests as required by the
10 notice under section 19A--
the court which convicts that person must
direct the person to provide the court with
the information that should have been
provided in a declaration of property
15 interests.
(2) If a person who has been given a notice
under section 19A--
(a) is convicted of the forfeiture offence in
relation to which the restraining order
20 was made; and
(b) has not, prior to that conviction,
provided the information that should
have been provided in a declaration of
property interests as required by the
25 notice under section 19A; and
(c) does not have a reasonable excuse for
failing to provide the information in a
declaration of property interests
required by the notice under section
30 19A--
the court which convicts that person must
direct the person to provide the court with
the information that should have been
provided in the declaration of property
35 interests.
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Confiscation (Amendment) Act 2002
Act No.
Part 2--Amendments to the Principal Act
s. 9
19E. Admissibility of statement
A statement made by a person in a
declaration of property interests given in
response to a notice under section 19A is
5 admissible against that person in--
(a) a proceeding for making a false or
misleading statement in the declaration;
or
(b) any proceeding under this Act, other
10 than a criminal proceeding in relation to
an offence against section 122 or 123--
but is not otherwise admissible in evidence
against that person.".
9. Further orders relating to existing restraining order
15 (1) In section 26(5) of the Principal Act, after
paragraph (g) insert--
"(ga) if the restraining order did not direct a trustee
to take control of property in accordance
with section 14(3), an order directing a
20 trustee to take control of property at any later
time specified in the order under sub-section
(1);".
(2) In section 26(5) of the Principal Act--
(a) in paragraph (h), for "property." substitute
25 "property;";
(b) after paragraph (h) insert--
"(i) an order directing a person to whose
property the restraining order relates or
who has an interest in that property to
30 use or manage specified property to
which the restraining order relates,
subject to conditions specified in the
order;
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Confiscation (Amendment) Act 2002
Act No.
Part 2--Amendments to the Principal Act
s. 10
(j) an order directing a person prescribed
for the purposes of sub-section (2)(da),
if that person so consents, to do any
activity specified in the order that is
5 reasonably necessary for the purpose of
managing specified property to which
the restraining order relates.
Example: The court may direct the carrying
out of repairs on restrained
10 premises.".
10. New Part 2A inserted--freezing orders
After Part 2 of the Principal Act insert--
'PART 2A--FREEZING ORDERS
31A. Definition
15 In this Part--
"authorised member of the police force"
means--
(a) a person authorised under section
31B; or
20 (b) a person belonging to a class
authorised under section 31B.
31B. Chief Commissioner of Police may
authorise police to apply for freezing orders
For the purposes of applying for a freezing
25 order under this Part, the Chief
Commissioner of Police may authorise in
writing the following--
(a) a member of the police force; or
(b) a class of member of the police force.
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Confiscation (Amendment) Act 2002
Act No.
Part 2--Amendments to the Principal Act
s. 10
31C. Freezing order
(1) A freezing order is an order that a financial
institution must not allow a person to make
withdrawals from a specified account--
5 (a) that is held in the person's name or in
the name of the person and another
person; or
(b) in which the person has an interest--
except in the manner and circumstances (if
10 any) specified in the order.
(2) For the purposes of a freezing order, it is
irrelevant whether or not money is deposited
into the account in relation to which the
freezing order was made after the order takes
15 effect.
(3) A freezing order does not prevent a financial
institution from making withdrawals from an
account for the purpose of meeting a liability
imposed on the financial institution in
20 connection with that account by any law of
the State or the Commonwealth.
31D. Application for freezing order
(1) An authorised member of the police force
may apply to the Magistrates' Court for a
25 freezing order if the applicant believes on
reasonable grounds that--
(a) the person in whose name the account
is held in respect of which the freezing
order is sought or a person who has an
30 interest in that account--
(i) has committed, or is about to
commit, a forfeiture offence, an
automatic forfeiture offence or a
civil forfeiture offence; or
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s. 10
(ii) was involved in the commission,
or is about to be involved in the
commission, of such an offence;
or
5 (iii) has benefited directly or
indirectly, or is about to benefit
directly or indirectly, from the
commission of such an offence;
and
10 (b) an application for a restraining order is
likely to be made in respect of property
in which the person--
(i) in whose name the account is held
has an interest; or
15 (ii) who has an interest in the account
in respect of which a freezing
order is sought, has an interest.
(2) Subject to this section and section 31E, an
application under sub-section (1) must be
20 supported by an affidavit setting out--
(a) the grounds on which the freezing order
is sought; and
(b) the name or names in which the
relevant account is held; and
25 (c) the financial institution with which the
account is held; and
(d) the account number or, if this is not
known to the applicant, a description of
the account that is sufficient to identify
30 the account.
(3) If the applicant for a freezing order believes
that it is impracticable for an affidavit to be
prepared and sworn before the application is
made, an application may be made before an
35 affidavit is prepared or sworn.
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s. 10
(4) If sub-section (3) applies, the applicant for a
freezing order must--
(a) provide as much information as the
Magistrates' Court considers is
5 reasonably practicable in the
circumstances; and
(b) not later than the day following the
making of the application, send a duly
sworn affidavit to the venue of the
10 Magistrates' Court that determined the
application, whether or not a freezing
order has been made.
(5) In addition to the powers of the Magistrates'
Court under section 126 of the Magistrates'
15 Court Act 1989, the Court may order that
the whole or any part of the proceedings for
an application for a freezing order be heard
in closed court if the Court is of the opinion
that it is necessary to do so in order not to
20 prejudice an investigation by a member of
the police force.
31E. Application may be made by telephone etc.
(1) If it is impracticable for the applicant for a
freezing order to apply in person, the
25 applicant may apply under section 31D for a
freezing order by telephone, facsimile or
other form of communication.
(2) If transmission by facsimile machine is
available and an affidavit has been prepared,
30 the applicant must transmit a copy of the
affidavit, whether sworn or unsworn, to the
venue of the Magistrates' Court that is to
determine the application for a freezing
order.
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s. 10
(3) If an application is made under section 31D
in accordance with this section, the
applicant, not later than the day following
the making of the application, must send the
5 original affidavit duly sworn to the venue of
the Magistrates' Court that determined the
application, whether or not a freezing order
has been made.
31F. Making of freezing order
10 (1) On an application under section 31D, the
Magistrates' Court may make a freezing
order if it is satisfied--
(a) that there are reasonable grounds for
believing the matters referred to in
15 paragraphs (a) and (b) of section
31D(1); and
(b) if the application has been made
without an affidavit, that--
(i) there are sufficiently urgent
20 circumstances to justify the
making of an application without
an affidavit; and
(ii) it would have been impracticable
for an affidavit to have been
25 prepared and sworn before the
application was made; and
(c) if the application has not been made in
person, that it would have been
impracticable for the applicant to have
30 applied in person for the freezing order;
and
(d) that it is appropriate to make the
freezing order.
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Act No.
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s. 10
(2) In determining whether a freezing order
should be made, the Magistrates' Court must
have regard to--
(a) the amount of money in the account to
5 be frozen; and
(b) whether the account is held in the name
of more than one person; and
(c) any hardship that may reasonably be
likely to be caused to any person by the
10 order.
(3) A freezing order must specify--
(a) the name of the magistrate constituting
the court which made the order; and
(b) the date and time at which the order
15 was made; and
(c) the name of the financial institution
with which the account is held; and
(d) the number of the account to be frozen
or a description of the account that is
20 sufficient to identify the account; and
(e) any conditions to which the order is
subject.
(4) A freezing order must be in the prescribed
form.
25 (5) Subject to sub-section (6), if the Magistrates'
Court makes a freezing order on an
application made in accordance with section
31E, the Court must--
(a) inform the applicant of the terms of the
30 freezing order and the date on which
and the time at which it was made; and
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Confiscation (Amendment) Act 2002
Act No.
Part 2--Amendments to the Principal Act
s. 10
(b) if transmission by facsimile machine is
available, transmit a copy of the
freezing order to the applicant.
(6) If a copy of the freezing order has not been
5 transmitted by facsimile machine, the
Magistrates' Court must make a copy of the
freezing order available to the applicant as
soon as practicable.
31G. Notice of freezing order
10 (1) If the Magistrates' Court makes a freezing
order and a copy of the order is provided to
the applicant in writing or by facsimile at the
time the order is made, a member of the
police force must give to the relevant
15 financial institution--
(a) a copy of the freezing order; and
(b) a notice in the prescribed form which
specifies--
(i) that the freezing order takes effect
20 at the time that notice of the
freezing order is given to the
financial institution and lasts for
72 hours unless the financial
institution is otherwise advised by
25 a member of the police force that
the order--
(A) has ceased to have effect; or
(B) has been extended by court
order under section 31I; and
30 (ii) the effect of sections 31K and
31L.
(2) If the Magistrates' Court makes a freezing
order and a copy of the order is not provided
to the applicant in writing or by facsimile at
35 the time the order is made, a member of the
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police force must give to the relevant
financial institution a notice in the prescribed
form which specifies--
(a) the name of the magistrate constituting
5 the court which made the order; and
(b) the date and time at which the order
was made; and
(c) the name of the financial institution;
and
10 (d) the number of the account to be frozen
or a description of the account that is
sufficient to identify the account; and
(e) any conditions to which the order is
subject; and
15 (f) that the freezing order takes effect at
the time that notice of the freezing
order is given to the financial institution
and lasts for 72 hours unless the
financial institution is otherwise
20 advised by a member of the police
force that the order--
(i) has ceased to have effect; or
(ii) has been extended by court order
under section 31I; and
25 (g) the effect of sections 31K and 31L.
(3) A notice under this section must not be given
to the relevant financial institution more than
72 hours after a freezing order has been
made.
30 (4) A notice under this section must be given in
accordance with section 137 and, without
limiting the generality of that section, may
be given by facsimile.
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(5) For the purposes of this section, the
regulations may prescribe a composite form
which incorporates the prescribed notice
required by sub-section (1) and the
5 prescribed notice required by sub-section (2).
31H. When does a freezing order take effect?
(1) A freezing order takes effect on the date and
at the time that notice of the freezing order is
given to the financial institution in
10 accordance with section 31G.
(2) Subject to section 31I, a freezing order
ceases to be in force on--
(a) the making of a restraining order in
respect of the money in the account; or
15 (b) the expiration of 72 hours after the time
on which the freezing order took
effect--
whichever occurs first.
31I. Extension of freezing orders
20 (1) A person who applied for a freezing order
may apply to the Magistrates' Court for an
extension of the duration of that freezing
order.
(2) On an application under sub-section (1), the
25 Magistrates' Court--
(a) must have regard to the matters set out
in section 31F(2); and
(b) must not extend the duration of a
freezing order unless the Court is
30 satisfied that--
(i) an application for a restraining
order in respect of the money in
the account has been made; and
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(ii) the application for the restraining
order has not been determined.
(3) If the Magistrates' Court extends the duration
of a freezing order, the applicant for the
5 extension must give a written notice to the
relevant financial institution stating that--
(a) the duration of the freezing order has
been extended; and
(b) the extended freezing order ceases to be
10 in force--
(i) when a restraining order is made
in respect of the money in the
account to which the freezing
order applies; or
15 (ii) if a restraining order is not made
in respect of the money in the
account to which the freezing
order applies, when the financial
institution is given notice under
20 sub-section (5) that the extended
freezing order has ceased to be in
force.
(4) A written notice under sub-section (3) must
be given within 6 hours after the Magistrates'
25 Court extends the freezing order.
(5) If the Magistrates' Court extends the duration
of a freezing order and, on the determination
of an application for a restraining order, a
restraining order is not made in respect of the
30 money in the account to which the freezing
order applies, the applicant for the extension
of the freezing order must give a written
notice to the relevant financial institution
stating that the extended freezing order has
35 ceased to be in force.
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(6) A written notice under sub-section (5) must
be given as soon as practicable, but not more
than 6 hours after the application for the
restraining order is determined.
5 (7) A freezing order that has been extended
under sub-section (2) ceases to be in force--
(a) when a restraining order is made in
respect of the money in the account to
which the freezing order applies; or
10 (b) if a restraining order is not made in
respect of the money in the account to
which the freezing order applies, when
the financial institution is given notice
under sub-section (5) that the extended
15 freezing order has ceased to be in force.
31J. Report to Magistrates' Court on freezing
order
(1) If a freezing order is made, the person who
applied for the freezing order must give a
20 report in writing to the registrar of the
Magistrates' Court--
(a) stating whether or not notice of the
freezing order was given to the
financial institution in accordance with
25 section 31G; and
(b) setting out the date on and time at
which the freezing order--
(i) took effect; and
(ii) ceased to be in force; and
30 (c) stating whether or not the freezing
order was extended.
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(2) A report under this section must be made--
(a) within 7 days after the freezing order
ceases to be in force; or
(b) if notice of the freezing order was not
5 given to the financial institution, within
7 days after the freezing order was
made.
31K. Failure to comply with freezing order
(1) A financial institution that has been given
10 notice of a freezing order must not, without
reasonable excuse, fail to comply with the
order.
Penalty: Level 5 fine (1200 penalty units
maximum).
15 (2) An offence against this section is a summary
offence.
31L. Offence to disclose existence of freezing
order
(1) While a freezing order is in force, a financial
20 institution that has been given notice of a
freezing order must not disclose the
existence or operation of the freezing order
to any person except--
(a) a member of the police force; or
25 (b) an officer or agent of the financial
institution, for the purpose of ensuring
that the freezing order is complied with;
or
(c) a legal practitioner acting for the
30 financial institution, for the purpose of
obtaining legal advice or representation
in relation to the freezing order; or
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(d) a person in whose name the account is
held or who has an interest in the
account in respect of which the freezing
order is made.
5 Penalty: Level 5 fine (1200 penalty units
maximum).
(2) While a freezing order is in force, a person to
whom the existence or operation of the
freezing order is disclosed in accordance
10 with sub-section (1) must not--
(a) while he or she is a person of a kind
referred to in paragraph (a), (b) or (c) of
sub-section (1) disclose the existence or
operation of the freezing order to any
15 person except another person of that
kind for the purpose of--
(i) if the disclosure is made by a
member of the police force, the
performance of the member's
20 duties; or
(ii) if the disclosure is made by an
officer or agent of the financial
institution, ensuring that the
freezing order is complied with or
25 obtaining legal advice or
representation in relation to the
freezing order; or
(iii) if the disclosure is made by a legal
practitioner, giving legal advice or
30 providing representation in
relation to the freezing order; or
(b) when he or she is no longer a person of
a kind referred to in paragraph (a), (b)
or (c) of sub-section (1), make a record
35 of, or disclose, the existence or
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operation of the freezing order in any
circumstances.
Penalty: Level 7 imprisonment (2 years
maximum) or a level 7 fine (240
5 penalty units maximum) or both.
(3) Nothing in sub-section (2) prevents the
disclosure by a person of a kind referred to in
paragraph (a), (b) or (c) of sub-section (1) of
the existence or operation of a freezing
10 order--
(a) for the purposes of, or in connection
with, legal proceedings; or
(b) in the course of proceedings before a
court.
15 (4) Nothing in sub-section (2) prevents the
disclosure by a person of a kind referred to in
paragraph (a) of sub-section (1) of the
existence or operation of a freezing order for
the purposes of a report under section
20 139A(1).
(5) While a freezing order is in force, a member
of the police force must not be required to
disclose to any court the existence or
operation of the freezing order.
25 (6) A reference in this section to disclosing the
existence or operation of a freezing order to
a person includes a reference to disclosing
information to the person from which the
person could reasonably be expected to infer
30 the existence or operation of the freezing
order.
(7) An offence against sub-section (1) is a
summary offence.
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31M. Freezing order to be disregarded for
application of section 122
If a financial institution is given, or has been
given, notice of a freezing order, the fact that
5 the freezing order has been made must be
disregarded for the purposes of the
application of section 122 (money
laundering) in relation to the institution.'.
11. Forfeiture where defendant has absconded
10 In section 32(4)(a) of the Principal Act, after
"defendant" insert ", unless the defendant has
absconded".
12. New Division 1A of Part 3 inserted
In Part 3 of the Principal Act, after Division 1
15 insert--
'Division 1A--Tainted Property Substitution
Declaration
34A. Interpretation
(1) For the purposes of this Division, property is
20 not available for forfeiture if the defendant
does not have an interest in the property.
(2) In this Division--
"applicant" means a person who may apply
for--
25 (a) a forfeiture order; or
(b) a restraining order for the
purposes of forfeiture.
34B. Application for tainted property substitution
declaration
30 (1) If a defendant is convicted of a forfeiture
offence, an applicant may apply for a tainted
property substitution declaration to--
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(a) the Supreme Court; or
(b) the County Court; or
(c) the court before which the defendant
was convicted of the offence.
5 (2) The application under sub-section (1) must--
(a) be made in conjunction with an
application for a forfeiture order; and
(b) specify property that the defendant used
or intended to use in or in connection
10 with the commission of the forfeiture
offence of which the defendant is
convicted; and
(c) specify property which is to be
substituted for the property referred to
15 in paragraph (b) that--
(i) is property in which the defendant
had an interest at the time that the
forfeiture offence was committed;
and
20 (ii) is of the same nature or
description as the property
referred to in paragraph (b).
Example: A defendant is convicted of a
sexual offence against a child and,
25 in the commission of that offence,
the defendant used a rented flat
although the defendant owned a
flat at the time. The prosecution
may apply to the court for a
30 declaration that the flat owned by
the defendant is tainted property
although the rented flat and the
defendant's flat are not of equal
value. (see section 34C(2)).
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34C. Court may make tainted property
substitution declaration
(1) Subject to sub-section (2), a court may make
a tainted property substitution declaration if
5 the court is satisfied as to the following
matters--
(a) that the defendant used or intended to
use the property which is not available
for forfeiture in or in connection with
10 the commission of the forfeiture
offence of which the defendant is
convicted; and
(b) that the property referred to in
paragraph (a) is not available for
15 forfeiture; and
(c) that the property which is to be
substituted for the property referred to
in paragraph (a)--
(i) is property in which the defendant
20 had an interest at the time that the
forfeiture offence was committed;
and
(ii) is of the same nature or
description as the property
25 referred to in paragraph (a).
(2) The court may make a tainted property
substitution declaration whether or not the
value of the property which is not available
for forfeiture is equal to the value of the
30 property which is to be substituted for that
property.
(3) A court must not make a tainted property
substitution declaration in respect of any
property if, at the time of the commission of
35 the forfeiture offence, the defendant did not
have an interest in the property.
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(4) If the court makes a tainted property
substitution declaration in respect of
property, that property--
(a) is substituted for the property which is
5 not available for forfeiture; and
(b) is deemed to be tainted property for the
purposes of this Act.'.
13. New sections 35A to 35C inserted
After section 35 of the Principal Act insert--
10 "35A. Automatic forfeiture offences--application
for court declaration
(1) Subject to sub-section (2), the DPP may
apply to the court which convicted a
defendant of an offence for a declaration that
15 the offence was an automatic forfeiture
offence.
(2) An application under sub-section (1) must
not be made if the court which convicted the
defendant of the offence has already made a
20 finding that the offence was committed in the
circumstances specified in Schedule 2 in
relation to that offence.
35B. Applicant to notify defendant
(1) The applicant must give written notice of the
25 application under section 35A to the
defendant.
(2) The court hearing the application under
section 35A may waive the requirement to
give notice if the defendant is present before
30 the court.
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(3) The defendant is entitled to appear and to
give evidence at the hearing of the
application under section 35A but the
absence of the defendant does not prevent
5 the court from making a declaration.
35C. Court may make declaration
On an application under section 35A, the
court may make a declaration if satisfied that
the offence is an automatic forfeiture
10 offence.".
14. Declaration that property has been forfeited
At the end of section 36 of the Principal Act
insert--
"(2) An applicant under this section for a
15 declaration that property has been forfeited is
not required to give notice of the application
to any person who has an interest in the
property.".
15. Application for civil forfeiture
20 In section 37(3) of the Principal Act, after "a
restraining order" insert "made in reliance on a
civil forfeiture offence for the purposes of civil
forfeiture".
16. Disposal of property
25 In section 77(1) of the Principal Act--
(a) in paragraph (d), for "sub-section--"
substitute "sub-section; or";
(b) after paragraph (d) insert--
"(e) any other property that--
30 (i) is of negligible value; or
(ii) is not fit for the use for which it is
intended and cannot be readily
made fit for that use--".
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17. Disposal orders
(1) In section 78(1) of the Principal Act, for "If"
substitute "Subject to sub-section (1A), if".
(2) In section 78 of the Principal Act, after sub-
5 section (1) insert--
"(1A) If an application under section 77(1) is made
in respect of property of the kind described
in paragraph (e) of that section, the court
must be satisfied as to the following matters
10 before making a disposal order under sub-
section (1)--
(a) that the property--
(i) is of negligible value; or
(ii) is not fit for the use for which it is
15 intended and cannot be readily
made fit for that use; and
(b) if there is any other person who has an
interest in the property to which the
application relates, that the person is
20 not likely to have any objections to the
disposal of the property; and
(c) that there is no other reason not to
dispose of the property.
Example: It may be a reason not to dispose of the
25 property if the property is of sentimental
value to a person.".
18. New Part 10A inserted--property management
After Part 10 of the Principal Act insert--
"PART 10A--PROPERTY MANAGEMENT
30 78A. Memorandum of understanding
(1) The Secretary and a law enforcement agency
may enter into a memorandum of
understanding that provides for the transfer
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from the law enforcement agency to the
Secretary of responsibilities and powers
under this Act in relation to the management
of property--
5 (a) seized under this Act; or
(b) in respect of which a restraining order
has been made; or
(c) seized under a warrant under--
(i) section 465 of the Crimes Act
10 1958; or
(ii) section 81 of the Drugs, Poisons
and Controlled Substances Act
1981.
(2) A memorandum of understanding may--
15 (a) refer to--
(i) specified property; or
(ii) a specified class of property; or
(iii) a specified person who has an
interest in property or against
20 whom an order or declaration is
made under this Act; and
(b) contain such terms as are agreed to by
the Secretary and the law enforcement
agency.
25 78B. Certificate of responsibility and power
(1) The Secretary may issue a certificate that
states that the Secretary has responsibility
for, and power in relation to, specified
property by virtue of a specified
30 memorandum of understanding entered into
under section 78A.
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(2) A certificate purporting to be signed by the
Secretary and issued under this section--
(a) is admissible in evidence in any
proceedings; and
5 (b) in the absence of evidence to the
contrary, is conclusive evidence of the
matters stated in it.
(3) A certificate under this section must be in the
prescribed form.".
10 19. New section 79A inserted
After section 79 of the Principal Act insert--
"79A. Seizure warrants--public places
(1) A member of the police force may apply to a
magistrate or to a judge of the Supreme
15 Court or County Court for a seizure warrant
to be issued under this Part in respect of--
(a) tainted property which is at a public
place; or
(b) property forfeited under this Act which
20 is at a public place.
(2) A magistrate or judge to whom an
application is made under sub-section (1), if
satisfied that there are reasonable grounds
for believing that there is, or may be within
25 the next 72 hours, any tainted property at a
public place or any property forfeited under
this Act at a public place, may issue a seizure
warrant authorising any member of the
police force to seize--
30 (a) the tainted property specified in the
warrant from a public place; or
(b) the forfeited property specified in the
warrant from a public place.
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(3) A seizure 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
5 judge is satisfied that it is likely that a person
will be so charged within 48 hours.
(4) There must be stated in a seizure warrant--
(a) the purpose for which the warrant is
issued; and
10 (b) the nature of the offence in reliance on
which the warrant is issued; and
(c) a description of the property authorised
to be seized.
(5) Nothing in a seizure warrant authorises--
15 (a) the seizure of property other than the
property specified in the warrant; or
(b) the arrest of a person; or
(c) the entry of any premises to seize
property.
20 (6) Every seizure warrant issued under sub-
section (2) must be in the prescribed form.".
20. Consequential amendments--seizure warrants
(1) In section 80 of the Principal Act, after "search
warrant" insert "or a seizure warrant" (wherever
25 occurring).
(2) Insert the following heading to section 81 of the
Principal Act --
"Warrant may be granted by telephone".
(3) In section 81 of the Principal Act--
30 (a) in sub-section (1), after "section 79" insert
"or a seizure warrant under section 79A";
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(b) in sub-section (4), after "section 79(2)"
insert "or section 79A(2) (as the case
requires)";
(c) in sub-section (5) after "search warrant"
5 insert "or a seizure warrant";
(d) in sub-section (6)--
(i) after "the search warrant" (where first
occurring) insert "or the seizure
warrant";
10 (ii) in paragraph (a), after "search warrant"
insert "or a seizure warrant (as the case
requires)";
(iii) in paragraph (b), after "search warrant"
insert "or the seizure warrant (as the
15 case requires)";
(e) in sub-section (7) after "search warrant"
insert "or a seizure warrant".
(4) In section 82(1) of the Principal Act, after "search
warrant" insert "or a seizure warrant".
20 (5) Insert the following heading to section 84 of the
Principal Act--
"Duty to show search warrant".
21. New section 84A inserted
After section 84 of the Principal Act insert--
25 "84A. Duty to show seizure warrant
A member of the police force executing a
seizure warrant must produce the warrant for
inspection by any person present during the
execution of the seizure warrant, if that
30 person--
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(a) has an interest in the property being
seized; or
(b) is in charge of the property being
seized.".
5 22. References to seizure warrants
(1) In section 86 of the Principal Act, after "search
warrant" insert "or a seizure warrant".
(2) In section 88 of the Principal Act, after "search
warrant" insert "or a seizure warrant".
10 23. New section 88A inserted
After section 88 of the Principal Act insert--
"88A. Notice of execution of seizure warrant
(1) The applicant for a seizure warrant must give
notice of the execution of that warrant to all
15 persons known to have an interest in the
property seized under the warrant.
(2) A notice under sub-section (1) must be--
(a) given as soon as practicable, but not
more than 7 days after the execution of
20 the seizure warrant; and
(b) in the prescribed form.".
24. Further references to seizure warrants
(1) In section 89 of the Principal Act--
(a) in sub-section (1), after "search warrant"
25 insert "or a seizure warrant";
(b) in sub-section (1)(d), for "stating" substitute
"in the case of a search warrant, stating";
(c) after paragraph (d) insert--
"(da) in the case of a seizure warrant, stating
30 whether or not a notice of the execution
of a seizure warrant has been given in
accordance with section 88A; and";
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(d) in sub-section (1)(e), after "execution of the"
insert "search".
(2) In section 90 of the Principal Act--
(a) after "search warrant" insert "or a seizure
5 warrant";
(b) in paragraph (b), for "a power" substitute
"in the case of a search warrant, a power".
(3) In section 91 of the Principal Act, after "search
warrant" insert "or a seizure warrant".
10 (4) In section 95 of the Principal Act, after "search
warrant" insert "or a seizure warrant".
25. New sections 95A to 95E inserted
After section 95 of the Principal Act insert--
"95A. Application for property seized under
15 search warrants under other Acts to be held
or retained under this Act
(1) A member of the police force may apply to
the Magistrates' Court for a declaration that
property seized under a warrant under--
20 (a) section 465 of the Crimes Act 1958; or
(b) section 81 of the Drugs, Poisons and
Controlled Substances Act 1981--
is to be held or retained as if it were tainted
property seized under a warrant under
25 section 79 of this Act.
(2) An application under sub-section (1) may
only be made if--
(a) the property is no longer required for
evidentiary purposes under the Crimes
30 Act 1958 or the Drugs, Poisons and
Controlled Substances Act 1981 (as
the case requires); and
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(b) no direction has previously been made
under section 465(1B) or 465C of the
Crimes Act 1958 or section 81(1A) or
81C of the Drugs, Poisons and
5 Controlled Substances Act 1981 (as
the case requires).
(3) An application may be made within 7 days
after the property is no longer required for
evidentiary purposes under the Crimes Act
10 1958 or the Drugs, Poisons and Controlled
Substances Act 1981 (as the case requires).
95B. What must be in the application?
(1) An application under section 95A must be
supported by evidence on oath or by affidavit
15 of the applicant.
(2) An application under section 95A must
specify--
(a) whether the warrant was issued under
the Crimes Act 1958 or the Drugs,
20 Poisons and Controlled Substances
Act 1981; and
(b) when the warrant was issued; and
(c) the property seized under the warrant
which is the subject of the application;
25 and
(d) the grounds on which the applicant
believes that the property seized under
the warrant is tainted property; and
(e) whether any directions have been made
30 in relation to the property and, if so,
whether those directions have been
complied with; and
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(f) the offence or offences with which the
defendant has been charged; and
(g) that the property which is the subject of
the application is no longer required for
5 evidentiary purposes under the Crimes
Act 1958 or the Drugs, Poisons and
Controlled Substances Act 1981 (as
the case requires).
95C. Court may make declaration
10 (1) If the Magistrates' Court is satisfied that it is
appropriate to do so, the Court may make a
declaration that property seized under a
warrant under--
(a) section 465 of the Crimes Act 1958; or
15 (b) section 81 of the Drugs, Poisons and
Controlled Substances Act 1981--
is to be held or retained as if it were tainted
property seized under a warrant under
section 79 of this Act.
20 (2) A declaration must--
(a) specify the property to which the
declaration applies; and
(b) state that the specified property to
which the declaration applies is to be
25 held or retained as if it were tainted
property seized under a warrant under
section 79 of this Act.
95D. Notice of declaration
(1) If the Magistrates' Court makes a declaration
30 under section 95C, the applicant for the
declaration must give notice that the
declaration has been made to all persons
known to have an interest in the property to
which the declaration applies that the
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property is being held or retained as if it
were tainted property seized under a warrant
under section 79 of this Act by virtue of a
declaration made under section 95C.
5 (2) A notice under sub-section (1) must be--
(a) given within 7 days after the
Magistrates' Court has made the
declaration under section 95C; and
(b) in the prescribed form.
10 95E. Effect of declaration
If a declaration is made under section 95C,
the property to which the declaration
applies--
(a) is deemed, on and from the date on
15 which the property is no longer
required for evidentiary purposes under
the Crimes Act 1958 or the Drugs,
Poisons and Controlled Substances
Act 1981 (as the case requires), to have
20 been seized as tainted property under a
warrant under section 79 of this Act;
and
(b) is to be dealt with under this Act
accordingly.".
25 26. Return of seized property--applications and seizure
warrants
(1) In section 97(2)(a) of the Principal Act, after
"search warrant" insert "or a seizure warrant".
(2) In section 97(3) of the Principal Act, after "search
30 warrant" insert "or a seizure warrant".
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(3) In section 97 of the Principal Act, after sub-
section (3) insert--
"(3A) If property has been seized under a search
warrant or a seizure warrant (other than
5 property seized under a warrant referred to in
sub-section (11) or sold under section 96), a
prescribed person may apply to the
Magistrates' Court for an order--
(a) directing that the property be returned
10 to--
(i) the person from whose possession
the property was seized; or
(ii) any other person who claims an
interest in the property; or
15 (b) directing that access to the property be
given to--
(i) the person from whose possession
the property was seized; or
(ii) any other person who claims an
20 interest in the property--
and the Court may, if it considers it
appropriate, make such an order on such
terms and conditions (if any) as it thinks fit.".
(4) In section 97 of the Principal Act--
25 (a) in sub-sections (4), (5), (6) and (10), after
"sub-section (3)" insert "or (3A)";
(b) in sub-section (11)--
(i) for "sub-section (3)" substitute "sub-
sections (3) and (3A)";
30 (ii) after "search warrant" insert "or a
seizure warrant".
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27. New Part 11A inserted--property management
warrants
After Part 11 of the Principal Act insert--
"PART 11A--PROPERTY MANAGEMENT
5 WARRANTS
Division 1--Search and Inspection Warrants
97A. Application for search and inspection
warrant
(1) A prescribed person or a person who belongs
10 to a prescribed class of persons may apply to
a magistrate for a search and inspection
warrant to be issued under this Division in
respect of specified property--
(a) that is the subject of a restraining order;
15 or
(b) to which an embargo notice relates; or
(c) that has been forfeited under this Act--
if the applicant believes on reasonable
grounds that--
20 (d) it is necessary to inspect the property
for the purposes of maintaining the
property; and
(e) in the case of property other than real
property, the property is, or may be
25 within the next 72 hours, in or on
specified premises.
(2) An application for a search and inspection
warrant must be made in writing.
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(3) A magistrate must not issue a search and
inspection warrant unless--
(a) the application for the warrant sets out
the grounds on which the warrant is
5 being sought; and
(b) the applicant has given the magistrate,
either orally or in writing, any further
information that the magistrate requires
concerning the grounds on which the
10 warrant is being sought; and
(c) the information given by the applicant
is verified before the magistrate on oath
or affirmation or by affidavit.
(4) A magistrate may administer an oath or
15 affirmation or take an affidavit for the
purposes of an application for a search and
inspection warrant.
97B. Search and inspection warrant
(1) A magistrate to whom an application is made
20 under section 97A, if satisfied that there are
reasonable grounds for believing the matters
set out in the application, may issue a search
and inspection warrant to the person or
persons named in the warrant to enter the
25 specified premises and search for and inspect
the specified property.
(2) A search and inspection warrant issued under
sub-section (1) may authorise the person or
persons named in the warrant--
30 (a) to enter the premises specified in the
warrant; and
(b) to search for and inspect the property
specified in the warrant; and
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(c) to break open any receptacle in or on
the premises specified in the warrant
for the purposes of the search and
inspection of the property specified in
5 the warrant, if it is reasonably
necessary to do so; and
(d) to photograph or record by other means
the property specified in the warrant;
and
10 (e) to make an inventory of the property
specified in the warrant.
(3) A search and inspection warrant issued under
sub-section (1) may authorise the sheriff or a
person directed by the sheriff to break and
15 enter the premises specified in the warrant.
(4) Nothing in a search and inspection warrant
authorises--
(a) the seizure of property; or
(b) the arrest of a person.
20 (5) There must be stated in a search and
inspection warrant--
(a) the purpose for which the warrant is
issued; and
(b) a description of the property authorised
25 to be inspected; and
(c) whether a restraining order or embargo
notice relates to the property or whether
the property is forfeited under this Act;
and
30 (d) the address or other description of the
premises in respect of which the
warrant is issued.
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(6) Every search and inspection warrant issued
under sub-section (1) must be in the
prescribed form.
97C. Record of proceedings for search and
5 inspection warrant
(1) A magistrate who issues a search and
inspection warrant must cause a record to be
made of all relevant particulars of the
grounds he or she has relied on to justify the
10 issue of the warrant.
(2) The magistrate may decline to record any
matter that might disclose the identity of a
person if the magistrate believes on
reasonable grounds that to do so might
15 jeopardise the safety of any person.
97D. Announcement before entry
On executing a search and inspection
warrant, the person executing the warrant--
(a) must announce that he or she is
20 authorised by the warrant to enter the
premises; and
(b) must give any person at the premises an
opportunity to allow entry to the
premises before force is used to enter
25 the premises.
97E. Copy of search and inspection warrant to
be given to occupier
(1) A person executing a search and inspection
warrant must--
30 (a) if the occupier is present at the
premises where the warrant is being
executed, identify himself or herself to
the occupier and give the occupier a
copy of the warrant; or
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(b) if the occupier is not present at the
premises where the warrant is being
executed, identify himself or herself to
any other person at the premises and
5 give that person a copy of the warrant.
Penalty: Level 10 fine (10 penalty units
maximum).
(2) If a person executing a search and inspection
warrant--
10 (a) believes that the occupier is not present
at the premises and that no other person
is present at the premises; or
(b) has given a copy of the warrant to a
person at the premises who is not the
15 occupier--
he or she must give the occupier a copy of
the warrant as soon as practicable but not
more than 7 days after the warrant is
executed.
20 Penalty: Level 10 fine (10 penalty units
maximum).
97F. Use of assistants to execute search and
inspection warrant
A person executing a search and inspection
25 warrant may do so with the aid of any
assistants that the person considers
reasonably necessary to achieve the purpose
for which the warrant was issued.
97G. Application of Magistrates' Court Act 1989
30 Except to the extent that a contrary intention
appears in this Division, the rules to be
observed with respect to search warrants
mentioned in the Magistrates' Court Act
1989 extend and apply to search and
35 inspection warrants under this Division.
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97H. Expiry of search and inspection warrant
(1) A search and inspection warrant ceases to
have effect if it is recalled and cancelled by
the magistrate who issued it.
5 (2) If sub-section (1) does not apply, a search
and inspection warrant ceases to have
effect--
(a) at the end of the period of 1 month after
its issue; or
10 (b) when it is executed--
whichever occurs first.
97I. Report on execution of warrant etc.
(1) The person to whom a search and inspection
warrant is issued must give a report to the
15 registrar of the Magistrates' Court--
(a) stating whether or not the warrant was
executed; and
(b) if the warrant was executed, setting out
briefly the result of the execution of the
20 warrant (including a brief description of
the property inspected); and
(c) if the warrant was not executed, setting
out briefly the reasons why the warrant
was not executed; and
25 (d) stating whether or not a copy of the
warrant was given to the occupier or
another person at the premises; and
(e) stating whether or not a copy of any
inventory made of the property
30 inspected and a notice as required by
section 97J were given to any person
who has an interest in the property
inspected.
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(2) A report must be--
(a) in the prescribed form; and
(b) made within 10 days after the expiry of
the warrant.
5 (3) A person may apply to the Magistrates'
Court for an order authorising the person to
inspect the report given under sub-section (1)
if the person satisfies the Court that the
person is--
10 (a) the owner or occupier of premises upon
which the warrant was executed; or
(b) a person who has an interest in property
inspected in the execution of the
warrant.
15 97J. Copy of inventory to be given
(1) A person who executes a search and
inspection warrant must give any person who
has an interest in the property inspected--
(a) a copy of any inventory made of the
20 property to which the warrant relates;
and
(b) a written notice stating that the person
who has an interest in the property may
request a copy of any photograph or
25 other record made of the property to
which the warrant relates as specified in
that notice.
(2) A copy of an inventory and a written notice
required to be given under sub-section (1)
30 must be given within a reasonable time after
the warrant was executed.
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(3) If a person requests a copy of any
photograph or other record in accordance
with sub-section (1), the person who
executed the search and inspection warrant
5 must give the copy or record to the person
who made the request, within 14 days after
the request was made.
97K. Defects in search and inspection warrant
A search and inspection warrant is not
10 invalidated by any defect, other than a defect
which affects the substance of the warrant in
a material particular.
97L. Obstruction or hindrance of person
executing search and inspection warrant
15 A person must not, without reasonable
excuse, obstruct or hinder a person executing
a search and inspection warrant.
Penalty: Level 9 fine (60 penalty units
maximum).
20 Division 2--Search and Seizure Warrants
97M. Application for search and seizure warrant
(1) A prescribed person or a person who belongs
to a prescribed class of persons may apply to
a magistrate for a search and seizure warrant
25 to be issued under this Division in respect of
specified property that has been forfeited
under this Act if the applicant believes on
reasonable grounds that the property is, or
may be within the next 72 hours, in or on
30 specified premises.
(2) An application for a search and seizure
warrant must be made in writing.
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(3) A magistrate must not issue a search and
seizure warrant unless--
(a) the application for the warrant sets out
the grounds on which the warrant is
5 being sought; and
(b) the applicant has given the magistrate,
either orally or in writing, any further
information that the magistrate requires
concerning the grounds on which the
10 warrant is being sought; and
(c) the information given by the applicant
is verified before the magistrate on oath
or affirmation or by affidavit.
(4) A magistrate may administer an oath or
15 affirmation or take an affidavit for the
purposes of an application for a search and
seizure warrant.
97N. Search and seizure warrant
(1) A magistrate to whom an application is made
20 under section 97M, if satisfied that there are
reasonable grounds for believing the matters
set out in the application, may issue a search
and seizure warrant to the person or persons
named in the warrant to enter the specified
25 premises and search for and seize the
specified property.
(2) A search and seizure warrant issued under
sub-section (1) may authorise the person or
persons named in the warrant--
30 (a) to enter the premises specified in the
warrant; and
(b) to break open any receptacle in or on
the premises specified in the warrant
for the purposes of the search and
35 seizure of the property specified in the
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warrant, if it is reasonably necessary to
do so; and
(c) to search for and seize the property
specified in the warrant.
5 (3) A search and seizure warrant issued under
sub-section (1) may authorise the sheriff or a
person directed by the sheriff to break and
enter the premises specified in the warrant.
(4) Nothing in a search and seizure warrant
10 authorises--
(a) the seizure of any property that is not
specified in the warrant; or
(b) the arrest of a person.
(5) There must be stated in a search and seizure
15 warrant--
(a) the purpose for which the warrant is
issued; and
(b) a description of the property authorised
to be seized; and
20 (c) the address or other description of the
premises in respect of which the
warrant is issued.
(6) Every search and seizure warrant issued
under sub-section (1) must be in the
25 prescribed form.
97O. Record of proceedings for search and
seizure warrant
(1) A magistrate who issues a search and seizure
warrant must cause a record to be made of all
30 relevant particulars of the grounds he or she
has relied on to justify the issue of the
warrant.
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(2) The magistrate may decline to record any
matter that might disclose the identity of a
person if the magistrate believes on
reasonable grounds that to do so might
5 jeopardise the safety of any person.
97P. Announcement before entry
On executing a search and seizure warrant,
the person executing the warrant--
(a) must announce that he or she is
10 authorised by the warrant to enter the
premises; and
(b) must give any person at the premises an
opportunity to allow entry to the
premises before force is used to enter
15 the premises.
97Q. Copy of search and seizure warrant to be
given to occupier
(1) A person executing a search and seizure
warrant must--
20 (a) if the occupier is present at the
premises where the warrant is being
executed, identify himself or herself to
the occupier and give the occupier a
copy of the warrant; or
25 (b) if the occupier is not present at the
premises where the warrant is being
executed, identify himself or herself to
any other person at the premises and
give that person a copy of the warrant.
30 Penalty: Level 10 fine (10 penalty units
maximum).
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(2) If a person executing a search and seizure
warrant--
(a) believes that the occupier is not present
at the premises and that no other person
5 is present at the premises; or
(b) has given a copy of the warrant to a
person at the premises who is not the
occupier--
he or she must give the occupier a copy of
10 the warrant as soon as practicable but not
more than 7 days after the warrant is
executed.
Penalty: Level 10 fine (10 penalty units
maximum).
15 97R. Use of assistants to execute search and
seizure warrant
A person executing a search and seizure
warrant may do so with the aid of any
assistants that the person considers
20 reasonably necessary to achieve the purpose
for which the warrant was issued.
97S. Application of Magistrates' Court Act 1989
Except to the extent that a contrary intention
appears in this Division, the rules to be
25 observed with respect to search warrants
mentioned in the Magistrates' Court Act
1989 extend and apply to search and seizure
warrants under this Division.
97T. Expiry of search and seizure warrant
30 (1) A search and seizure warrant ceases to have
effect if it is recalled and cancelled by the
magistrate who issued it.
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(2) If sub-section (1) does not apply, a search
and seizure warrant ceases to have effect--
(a) at the end of the period of 1 month after
its issue; or
5 (b) when it is executed--
whichever occurs first.
97U. Report on execution of search and seizure
warrant etc.
(1) The person to whom a search and seizure
10 warrant is issued must give a report to the
registrar of the Magistrates' Court--
(a) stating whether or not the warrant was
executed; and
(b) if the warrant was executed, setting out
15 briefly the result of the execution of the
warrant (including a brief description of
the property seized); and
(c) if the warrant was not executed, setting
out briefly the reasons why the warrant
20 was not executed; and
(d) stating whether or not a copy of the
warrant was given to the occupier or
another person at the premises.
(2) A report must be--
25 (a) in the prescribed form; and
(b) made within 10 days after the expiry of
the warrant.
(3) A person may apply to the Magistrates'
Court for an order authorising the person to
30 inspect the report given under sub-section (1)
if the person satisfies the Court that the
person is--
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(a) the owner or occupier of premises upon
which the warrant was executed; or
(b) a person who has an interest in property
seized in the execution of the warrant.
5 97V. Defects in search and seizure warrant
A search and seizure warrant is not
invalidated by any defect, other than a defect
which affects the substance of the warrant in
a material particular.
10 97W. Obstruction or hindrance of person
executing search and seizure warrant
A person must not, without reasonable
excuse, obstruct or hinder a person executing
a search and seizure warrant.
15 Penalty: Level 9 fine (60 penalty units
maximum).".
28. Examination orders
In section 98 of the Principal Act, for sub-section
(2) substitute--
20 "(2) If a court is satisfied that--
(a) a defendant has been charged with or
convicted of a forfeiture offence, an
automatic forfeiture offence or a civil
forfeiture offence; and
25 (b) it is appropriate to make an order under
this section--
the court may, on application by a relevant
person, make an order for the examination
before the court of any person concerning--
30 (c) the affairs of the defendant, including
the nature and location of--
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(i) any property in which the
defendant has or may have an
interest; or
(ii) any property which the applicant
5 for the order believes on
reasonable grounds to be tainted
property; and
(d) issues connected with the effective
management and maintenance of any
10 property referred to in paragraph (c),
including any income, expenditure or
liabilities in relation to the property.
(2A) In determining whether it is appropriate to
make an order under sub-section (2) in
15 respect of a defendant who has been charged
with a forfeiture offence, an automatic
forfeiture offence or a civil forfeiture
offence, the likelihood of the defendant
being convicted of the offence is not a
20 relevant consideration.".
29. New Division 3A of Part 13 inserted
After Division 3 of Part 13 of the Principal Act
insert--
'Division 3A--Information Notices
25 118A. Definition
In this Division--
"authorised member of the police force"
means a member of the police force
authorised under section 118B.
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118B. Chief Commissioner of Police may
authorise police to issue information
notices
The Chief Commissioner of Police may
5 authorise in writing a member of the police
force of the rank of inspector or above to
issue information notices.
118C. Who can issue information notices?
An information notice may be issued in
10 accordance with this Division by--
(a) an authorised member of the police
force; or
(b) a prescribed person.
118D. Issuing information notices--authorised
15 member of police force
(1) An authorised member of the police force
may issue an information notice to a
financial institution for the purposes of any
proceedings under this Act, other than
20 criminal proceedings in relation to an
offence against section 122 or 123.
(2) An authorised member of the police force
must not issue an information notice unless
he or she reasonably believes that--
25 (a) the person in respect of whose account
with the financial institution the
information is sought or a person who
has an interest in that account--
(i) has committed, or is about to
30 commit, a forfeiture offence, an
automatic forfeiture offence or a
civil forfeiture offence; or
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(ii) was involved in the commission,
or is about to be involved in the
commission, of such an offence;
or
5 (iii) has benefited directly or
indirectly, or is about to benefit
directly or indirectly, from the
commission of such an offence;
and
10 (b) the issuing of the information notice is
required to determine whether to take
any action under this Act.
118E. Issuing information notices--prescribed
person
15 (1) A person prescribed for the purposes of
section 118C may issue an information
notice to a financial institution for the
purposes of satisfying a pecuniary penalty
order.
20 (2) A person prescribed for the purposes of
section 118C must not issue an information
notice unless he or she reasonably believes
that--
(a) a pecuniary penalty order has been
25 made against a defendant in relation to
a forfeiture offence, an automatic
forfeiture offence or a civil forfeiture
offence; and
(b) the issuing of the information notice is
30 required to satisfy the pecuniary
penalty order.
118F. Information notice to be signed and reasons
recorded
(1) A person who issues an information notice
35 must sign the notice.
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(2) A person who issues an information notice
must make a written record of the reasons he
or she has relied on to justify the issuing of
the information notice.
5 118G. What can an information notice require?
(1) An information notice may require a
financial institution to give to the law
enforcement agency specified in the
information notice the following information
10 only--
(a) if the information notice specifies a
name or names in which an account is
believed to be held--
(i) whether an account is held in that
15 name or those names with the
financial institution; and
(ii) if an account is held in that name
or those names with that
institution, the account number
20 and current balance of that
account; or
(b) if the information notice specifies an
account number--
(i) the name or names in which that
25 account is held; and
(ii) the balance of that account.
(2) An information notice may only require a
financial institution to give information to
the law enforcement agency of which the
30 person who issued the information notice is a
member or an officer or an employee.
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118H. What must the information notice contain?
(1) An information notice must be in the
prescribed form.
(2) An information notice must specify--
5 (a) the name of the person who has issued
the information notice; and
(b) the section of this Act under which that
person is authorised to issue
information notices; and
10 (c) the name of the financial institution;
and
(d) the name or names in which the
account is believed to be held or the
account number of the account believed
15 to be held with the financial institution
(as the case requires); and
(e) any other details that may assist the
financial institution to identify the
account; and
20 (f) the kind of information that the
financial institution is required to give;
and
(g) the law enforcement agency to which
the information is to be given, being the
25 law enforcement agency of which the
person who issued the information
notice is a member or an officer or an
employee; and
(h) that the information required is to be
30 given in writing; and
(i) the period within which the financial
institution is to comply with the
information notice, being a period of
not less than 3 business days after the
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date on which the information notice is
given to the financial institution; and
(j) the effect of sections 118J, 118K and
118L.
5 118I. How is an information notice given?
An information notice must be given to a
financial institution in accordance with
section 137 and, without limiting the
generality of that section, may be given by
10 facsimile.
118J. Offence to fail to comply with information
notice
(1) A financial institution that has been given an
information notice must not--
15 (a) without reasonable excuse, fail to
comply with the information notice; or
(b) in purported compliance with the
information notice, knowingly give
information that is false or misleading
20 in a material particular.
Penalty: Level 5 fine (1200 penalty units
maximum).
(2) An offence against this section is a summary
offence.
25 118K. Offence to disclose existence of information
notice
(1) Subject to sub-section (7), a financial
institution that is given, or has been given, an
information notice must not disclose the
30 existence of the information notice to any
person (including the person to whom the
notice relates) except--
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(a) if the information notice specifies the
police force of Victoria as the law
enforcement agency to which the
information is to be given, a member of
5 the police force; or
(b) if the information notice specifies
another authority or person as the law
enforcement agency to which
information is to be given, a member or
10 an officer or an employee of the
agency; or
(c) an officer or agent of the financial
institution, for the purpose of ensuring
that the information notice is complied
15 with; or
(d) a legal practitioner acting for the
financial institution, for the purpose of
obtaining legal advice or representation
in relation to the information notice.
20 Penalty: Level 5 fine (1200 penalty units
maximum).
(2) Subject to sub-section (7), a person to whom
the existence of an information notice is
disclosed in accordance with sub-section (1)
25 must not--
(a) while he or she is a person of a kind
referred to in paragraph (a), (b), (c) or
(d) of sub-section (1), disclose the
existence of the information notice to
30 any person except another person of
that kind for the purpose of--
(i) if the disclosure is made by a
person of a kind referred to in
paragraph (a) or (b) of sub-section
35 (1), 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
information notice is complied
5 with or obtaining legal advice or
representation in relation to the
information notice; or
(iii) if the disclosure is made by a legal
practitioner, giving legal advice or
10 providing representation in
relation to the information notice;
or
(b) when he or she is no longer a person of
a kind referred to in paragraph (a), (b),
15 (c) or (d) of sub-section (1), make a
record of, or disclose, the existence of
the information notice in any
circumstances.
Penalty: Level 7 imprisonment (2 years
20 maximum) or a level 7 fine (240
penalty units maximum) or both.
(3) Nothing in sub-section (2) prevents the
disclosure by a person of a kind referred to in
paragraph (a), (b), (c) or (d) of sub-section
25 (1) of the existence of an information
notice--
(a) for the purposes of, or in connection
with, legal proceedings; or
(b) in the course of proceedings before a
30 court.
(4) Nothing in sub-section (2) prevents the
disclosure by a person of a kind referred to in
paragraph (a) or (b) of sub-section (1) of the
existence of an information notice for the
35 purposes of a report under section 139A(1)
or (2).
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(5) A reference in this section to disclosing the
existence of an information notice to a
person includes a reference to disclosing
information to the person from which the
5 person could reasonably be expected to infer
the existence of the information notice.
(6) An offence against sub-section (1) is a
summary offence.
(7) It is not an offence under this section to
10 disclose the existence of an information
notice if the existence of the information
notice has been made known in any
proceedings in open court.
118L. Immunity from suit
15 No civil proceeding lies against--
(a) a financial institution; or
(b) a person who is an officer, employee or
agent of that financial institution acting
in the course of that person's duties as
20 an officer, employee or agent--
in relation to any action taken or information
given by the institution or person in
compliance with an information notice.
118M. Giving of information notice to be
25 disregarded for application of section 122
If a financial institution is given, or has been
given, an information notice, the fact that the
information notice has been issued must be
disregarded for the purposes of the
30 application of section 122 (money
laundering) in relation to the institution.'.
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30. New Division 4A of Part 13 inserted
After Division 4 of Part 13 of the Principal Act
insert--
"Division 4A--Sharing of Information
5 119A. Communication of information between
law enforcement agencies
A person who is a member or an officer or
employee of a law enforcement agency may
divulge or communicate any information to
10 another law enforcement agency if the
person divulging or communicating that
information believes on reasonable grounds
that to do so is necessary for--
(a) the management of property--
15 (i) seized under this Act; or
(ii) in respect of which a restraining
order has been made; or
(iii) to which an embargo notice
relates; or
20 (b) the purposes of any proceedings under
this Act; or
(c) the enforcement of this Act or any
orders made under this Act.".
31. New Division 6 of Part 13 inserted
25 After Division 5 of Part 13 of the Principal Act
insert--
"Division 6--Document Requests
120A. When a document request may be made
If, under a memorandum of understanding
30 entered into under section 78A, the Secretary
has responsibility for property, the Secretary
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may request any person whom the Secretary
believes has possession or control of
documents that relate to the maintenance and
management of that property to produce
5 those documents to the Secretary.
120B. Document request
A document request must--
(a) be in the prescribed form; and
(b) specify the basis on which the Secretary
10 has responsibility for the property; and
(c) specify the documents requested or the
type of documents requested; and
(d) state the purposes for which the
documents are sought; and
15 (e) state whether the documents will be
provided to any other person and if so,
in what circumstances; and
(f) be given to the person who is requested
to produce the documents.
20 120C. Offences
(1) A person who is given a document request
must not, without reasonable excuse, fail to
comply with the document request within
14 days after the day on which the document
25 request is given.
Penalty: Level 9 fine (60 penalty units
maximum).
(2) A person who is given a document request
must not provide any document that is false
30 or misleading in a material particular.
Penalty: Level 9 fine (60 penalty units
maximum).
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120D. Requested documents to be provided--
Court order
If a person has been convicted of an offence
against section 120C, the court which
5 convicts that person may direct the person to
provide the documents that should have been
provided to the Secretary.
120E. Return of documents
(1) A document that is produced under this
10 Division to the Secretary must be returned to
the person who produced the document
within 7 days after so producing the
document.
(2) If the Secretary believes on reasonable
15 grounds that it is necessary for the purposes
of this Act to retain the document for more
than 7 days, the Secretary must give the
person who produced the document a copy
of the document certified in writing to be a
20 true copy of the document.".
32. Specified items forfeited
After section 123(2) of the Principal Act insert--
"(3) If a person is convicted of an offence against
sub-section (1) and the charge for that
25 offence referred to only one item of property,
that item of property is forfeited.
(4) If a person is convicted of an offence against
sub-section (1) and the charge for that
offence referred to more than one item of
30 property--
(a) the court must make a declaration
specifying those items of property that
are reasonably suspected of being
proceeds of crime; and
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(b) the items of property specified in the
declaration are forfeited.".
33. New section 139A inserted
After section 139 of the Principal Act insert--
5 "139A. Reports to the Minister
(1) As soon as practicable after the end of each
financial year, the Chief Commissioner of
Police must submit a report to the Minister
that includes the following information--
10 (a) the number of information notices
issued by members of the police force;
and
(b) the number of applications for freezing
orders made by members of the police
15 force--
(i) by telephone; and
(ii) by facsimile; and
(iii) in person; and
(c) the number of freezing orders made;
20 and
(d) the number of freezing orders made in
respect of accounts which were
subsequently the subject of a
restraining order; and
25 (e) the number of notices of freezing orders
given under section 31G to financial
institutions.
(2) As soon as practicable after the end of each
financial year, a law enforcement agency
30 prescribed for the purposes of this section
must submit a report to the Minister that
includes the following information--
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(a) the number of information notices
issued by the law enforcement agency;
and
(b) the number of applications by the law
5 enforcement agency for search and
inspection warrants; and
(c) the number of search and inspection
warrants issued to the law enforcement
agency; and
10 (d) the number of search and inspection
warrants executed by the law
enforcement agency; and
(e) the number of search and inspection
warrants executed by the law
15 enforcement agency which involved the
use of force to enter premises; and
(f) the number of document requests made
by the law enforcement agency under a
delegation by the Secretary in
20 accordance with section 143A.
(3) The Minister must cause each report under
sub-sections (1) and (2) to be laid before
each House of the Parliament within
14 sitting days of that House after it is
25 received by the Minister.".
34. Secrecy
In section 140 of the Principal Act--
(a) in sub-section (1), after "this section" insert
"and section 119A";
30 (b) sub-section (3) is repealed.
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35. New section 143A inserted
After section 143 of the Principal Act insert--
"143A. Delegation
The Secretary, by instrument, may delegate
5 to any prescribed person any power or
function of the Secretary under Division 6 of
Part 13.".
36. Supreme Court--limitation of jurisdiction
At the end of section 145 of the Principal Act
10 insert--
"(2) It is the intention of section 118L to alter or
vary section 85 of the Constitution Act
1975.".
37. Forfeiture offences
15 (1) In Schedule 1 to the Principal Act, after item 5
insert--
"5A. An offence against section 54(5) of the Dangerous
Goods Act 1985 (selling or otherwise dealing with an
unauthorised explosive).".
20 (2) In Schedule 1 to the Principal Act, in item 7--
(a) after paragraph (g) insert--
"(ga) section 66A(1) (taking fish during quota period
in excess of notice specification);";
(b) in paragraph (i), after "(2)" insert ", (4B)";
25 (c) for paragraph (j) substitute--
"(j) section 68B(1) (possession of fish taken from
non-Victorian waters in contravention of
permitted size or amount);";
(d) after paragraph (l) insert--
30 "(la) section 99(1) (failure to keep document in
relation to receipt of priority species);
(lb) section 108A(5) (failure to comply with
retention notice);";
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(e) after paragraph (u) insert--
"(ua) section 130A(5) (failure to comply with court
order prohibiting fishing activity or possession
of fish or equipment);
5 (ub) section 130B(6) (failure to comply with court
order prohibiting person from being in or on
specified waters);".
(3) In Schedule 1 to the Principal Act, after item 13
insert--
10 "13A. An offence against any of the following provisions of
the National Parks Act 1975:
(a) section 45A(1) (taking fish or fishing bait for
sale in marine national park or marine
sanctuary);
15 (b) section 45A(2) (taking fish or fishing bait for
purposes other than sale without permit in
marine national park or marine sanctuary);
(c) section 45A(3) (growing etc. fish or fishing bait
in marine national park or marine sanctuary);
20 (d) section 45A(4) (being in a prescribed area in
charge of prescribed boat or in charge of boat
carrying prescribed equipment);
(e) section 45A(5) (possessing or being in charge
of boat carrying a priority species).".
25 38. New items 1(ac) and (ad) inserted--trafficking in
drug of dependence
(1) In item 1 of Schedule 2 to the Principal Act, after
paragraph (ab) insert--
"(ac) section 71AB (trafficking in a drug of dependence to
30 a child) where--
(i) the drug of dependence is a drug specified in
Part 3 of Schedule Eleven to that Act; and
(ii) the quantity of the drug of dependence
trafficked is not less than the automatic
35 forfeiture quantity specified in column 2B of
Part 3 of Schedule Eleven to that Act applicable
to that drug;
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(ad) section 71AC (trafficking in a drug of dependence)
where--
(i) the drug of dependence is a drug specified in
Part 3 of Schedule Eleven to that Act; and
5 (ii) the quantity of the drug of dependence
trafficked is not less than the automatic
forfeiture quantity specified in column 2B of
Part 3 of Schedule Eleven to that Act applicable
to that drug;".
10 (2) In item 1 of Schedule 2 to the Principal Act--
(a) in paragraph (c)--
(i) after "offence" insert "in the
circumstances";
(ii) after "(ab)," insert "(ac), (ad),";
15 (b) in paragraph (d)--
(i) for "paragraph (a), (ab), (b) or (ba)"
(where first occurring) substitute
"paragraph (a), (ab), (ac), (ad), (b) or
(ba), committed in the circumstances
20 referred to in those paragraphs"; and
(ii) after "(ab)" (where secondly occurring)
insert "(ac), (ad),"; and
(iii) after "71AA" insert ", 71AB, 71AC".
39. Item 2 substituted and new items 2A to 2C inserted--
25 automatic forfeiture offences
For item 2 of Schedule 2 to the Principal Act,
substitute--
"2. An offence against any of the following provisions of
the Crimes Act 1958:
30 (a) section 27 (extortion with threat to kill)
where--
(i) only one offence is charged and the
demand made is $50 000 or more; or
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(ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
the same or similar character and the
5 combined demands made are $75 000 or
more;
(b) section 28 (extortion with threat to destroy
property) where--
(i) only one offence is charged and the
10 demand made is $50 000 or more; or
(ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
the same or similar character and the
15 combined demands made are $75 000 or
more;
(c) section 74 (theft) where--
(i) only one offence is charged and the value
of the property in respect of which the
20 offence is committed is $50 000 or more;
or
(ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
25 the same or similar character and the
value of the property in respect of which
the offences are committed is $75 000 or
more;
(d) section 75 (robbery) where--
30 (i) only one offence is charged and the value
of the property in respect of which the
offence is committed is $50 000 or more;
or
(ii) more than one offence is charged and the
35 offences are founded on the same facts or
form or are part of a series of offences of
the same or similar character and the
value of the property in respect of which
the offences are committed is $75 000 or
40 more;
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(e) section 75A (armed robbery) where--
(i) only one offence is charged and the value
of the property in respect of which the
offence is committed is $50 000 or more;
5 or
(ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
the same or similar character and the
10 value of the property in respect of which
the offences are committed is $75 000 or
more;
(f) section 81(1) (obtaining property by deception)
where--
15 (i) only one offence is charged and the value
of the property in respect of which the
offence is committed is $50 000 or more;
or
(ii) more than one offence is charged and the
20 offences are founded on the same facts or
form or are part of a series of offences of
the same or similar character and the
value of the property in respect of which
the offences are committed is $75 000 or
25 more;
(g) section 82(1) (obtaining financial advantage by
deception) where--
(i) only one offence is charged and the value
of the financial advantage obtained is
30 $50 000 or more; or
(ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
the same or similar character and the
35 value of the financial advantage obtained
is $75 000 or more;
(h) section 87 (blackmail) where--
(i) only one offence is charged and the
demand made is $50 000 or more; or
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(ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
the same or similar character and the
5 combined demands made are $75 000 or
more;
(i) section 88 (handling stolen goods) where--
(i) only one offence is charged and the value
of the goods in respect of which the
10 offence is committed is $50 000 or more;
or
(ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
15 the same or similar character and the
value of the goods in respect of which the
offences are committed is $75 000 or
more;
(j) section 176 (receipt or solicitation of secret
20 commission by an agent) where--
(i) only one offence is charged and the
valuable consideration in respect of
which the offence is committed is
$50 000 or more; or
25 (ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
the same or similar character and the
valuable consideration in respect of
30 which the offences are committed is
$75 000 or more;
(k) section 178 (giving or receiving false or
misleading receipt or account with intent to
defraud or deceive principal) where--
35 (i) only one offence is charged and the
amount intended to be defrauded is
$50 000 or more; or
(ii) more than one offence is charged and the
offences are founded on the same facts or
40 form or are part of a series of offences of
the same or similar character and the
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combined amounts intended to be
defrauded are $75 000 or more;
(l) section 179 (gift or receipt of secret
commission in return for advice) where--
5 (i) only one offence is charged and the
valuable consideration in respect of
which the offence is committed is
$50 000 or more; or
(ii) more than one offence is charged and the
10 offences are founded on the same facts or
form or are part of a series of offences of
the same or similar character and the
valuable consideration in respect of
which the offences are committed is
15 $75 000 or more;
(m) section 180 (secret commission to trustee in
return for substituted appointment) where--
(i) only one offence is charged and the
valuable consideration in respect of
20 which the offence is committed is
$50 000 or more; or
(ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
25 the same or similar character and the
valuable consideration in respect of
which the offences are committed is
$75 000 or more;
(n) section 191 (fraudulently inducing persons to
30 invest money) where--
(i) only one offence is charged and the value
of the property (including any profit) in
respect of which the offence is
committed is $50 000 or more; or
35 (ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
the same or similar character and the
value of the property (including any
40 profit) in respect of which the offences
are committed is $75 000 or more;
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(o) section 321(1) where the conspiracy is to
commit an offence in the circumstances
referred to in paragraphs (a) to (n).
2A. An offence against any of the following provisions of
5 the Prostitution Control Act 1994:
(a) section 6(1) (receiving payment for sexual
services provided by a child) where--
(i) only one offence is charged and the value
of the payment received is $50 000 or
10 more; or
(ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
the same or similar character and the
15 combined value of the payments received
is $75 000 or more;
(b) section 7(1) (agreement for provision of sexual
services by a child) where--
(i) only one offence is charged and the value
20 of the agreed payment is $50 000 or
more; or
(ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
25 the same or similar character and the
combined value of the agreed payments
is $75 000 or more;
(c) section 7(1) (agreement for provision of sexual
services by a child) where--
30 (i) only one offence is charged and the
provision of sexual services is in
exchange for a quantity of a drug of
dependence which is--
(A) in the case of a drug of dependence
35 specified in Part 3 of Schedule
Eleven to the Drugs, Poisons and
Controlled Substances Act 1981,
not less than the automatic
forfeiture quantity specified in
40 column 2B of Part 3 of that
Schedule to that Act applicable to
that drug; or
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(B) in the case of any other drug of
dependence within the meaning of
the Drugs, Poisons and
Controlled Substances Act 1981,
5 not less than the commercial
quantity applicable to that drug; or
(ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
10 the same or similar character and the
provision of sexual services is in
exchange for a combined quantity of
drugs of dependence which is--
(A) in the case of a drug of dependence
15 or drugs of dependence specified
in Part 3 of Schedule Eleven to the
Drugs, Poisons and Controlled
Substances Act 1981, not less
than the automatic forfeiture
20 quantity specified in column 2B of
Part 3 of that Schedule to that Act
applicable to that drug or those
drugs; or
(B) in the case of any other drug of
25 dependence or drugs of
dependence within the meaning of
the Drugs, Poisons and
Controlled Substances Act 1981,
not less than the commercial
30 quantity applicable to that drug or
those drugs;
(d) section 22(1) (carrying on business as a
prostitution service provider without licence or
in breach of licence) where--
35 (i) only one offence is charged and $50 000
or more is received by the business; or
(ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
40 the same or similar character and
$75 000 or more is received by the
business;
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(e) section 22(3) (assisting in the carrying on of a
prostitution service providing business without
licence or in breach of licence) where--
(i) only one offence is charged and $50 000
5 or more is received by the business; or
(ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
the same or similar character and
10 $75 000 or more is received by the
business.
2B. An offence against any of the following provisions of
the Casino Control Act 1991:
(a) section 153A(2) (bribery by a key official
15 within the meaning of that Act) where--
(i) only one offence is charged and the value
of the money, property or value of any
kind in respect of which the offence is
committed is $50 000 or more; or
20 (ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
the same or similar character and the
value of the money, property or value of
25 any kind in respect of which the offences
are committed is $75 000 or more;
(b) section 153A(3) (bribery of a key official
within the meaning of that Act) where--
(i) only one offence is charged and the value
30 of the money, property or value of any
kind in respect of which the offence is
committed is $50 000 or more; or
(ii) more than one offence is charged and the
offences are founded on the same facts or
35 form or are part of a series of offences of
the same or similar character and the
value of the money, property or value of
any kind in respect of which the offences
are committed is $75 000 or more.
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2C. An offence against any of the following provisions of
the Gaming and Betting Act 1994:
(a) section 120(2) (bribery by a key official within
the meaning of that Act) where--
5 (i) only one offence is charged and the value
of the money, property or value of any
kind in respect of which the offence is
committed is $50 000 or more; or
(ii) more than one offence is charged and the
10 offences are founded on the same facts or
form or are part of a series of offences of
the same or similar character and the
value of the money, property or value of
any kind in respect of which the offences
15 are committed is $75 000 or more;
(b) section 120(3) (bribery of a key official within
the meaning of that Act) where--
(i) only one offence is charged and the value
of the money, property or value of any
20 kind in respect of which the offence is
committed is $50 000 or more; or
(ii) more than one offence is charged and the
offences are founded on the same facts or
form or are part of a series of offences of
25 the same or similar character and the
value of the money, property or value of
any kind in respect of which the offences
are committed is $75 000 or more.".
40. Money laundering
30 In Schedule 2 to the Principal Act, in item 3, for
"referred to in item 1 or 2" substitute "committed
in the circumstances referred to in item 1, 1A, 2,
2A, 2B, 2C, 8 or 9".
41. Attempts
35 In Schedule 2 to the Principal Act, in item 5, for
"referred to in items 1 to 3" substitute "in the
circumstances referred to in item 1, 1A, 2, 2A, 2B,
2C, 3, 8 or 9".
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s. 42
42. Item 7 substituted and new items 8 and 9 inserted--
automatic forfeiture offences
In Schedule 2 to the Principal Act, for item 7
substitute--
5 "7. The common law offence of conspiracy to defraud
where--
(a) only one offence is charged and the value of the
property, financial advantage or economic loss
in respect of which the offence is committed is
10 $50 000 or more; or
(b) more than one offence is charged and the
offences are founded on the same facts or form
or are part of a series of offences of the same or
similar character and the value of the property,
15 financial advantage or economic loss in respect
of which the offences are committed is $75 000
or more.
8. The common law offence of misconduct in public
office where--
20 (a) only one offence is charged and the value of the
property in respect of which the offence is
committed is $50 000 or more; or
(b) more than one offence is charged and the
offences are founded on the same facts or form
25 or are part of a series of offences of the same or
similar character and the value of the property
in respect of which the offences are committed
is $75 000 or more.
9. The common law offence of bribery of a public
30 official where--
(a) only one offence is charged and the value of the
property in respect of which the offence is
committed is $50 000 or more; or
(b) more than one offence is charged and the
35 offences are founded on the same facts or form
or are part of a series of offences of the same or
similar character and the value of the property
in respect of which the offences are committed
is $75 000 or more.".
__________________
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Act No.
Part 3--Transitional Provisions
s. 43
PART 3--TRANSITIONAL PROVISIONS
43. New sections 158 to 172 inserted
After section 157 of the Principal Act insert--
"158. Confiscation (Amendment) Act 2002--
5 declaration of property interests transitional
provision
Sections 19A to 19E apply only in relation to
property in respect of which a restraining
order is made after the commencement of
10 section 8 of the Confiscation (Amendment)
Act 2002.
159. Confiscation (Amendment) Act 2002--
freezing orders transitional provision
Part 2A applies with respect to any forfeiture
15 offence, automatic forfeiture offence or civil
forfeiture offence irrespective of when the
offence is alleged to have been committed.
160. Confiscation (Amendment) Act 2002--
tainted property substitution declaration
20 transitional provisions
(1) Division 1A of Part 3 applies with respect to
forfeiture offences only if they are alleged to
have been committed after the
commencement of section 12 of the
25 Confiscation (Amendment) Act 2002.
(2) For the purposes of sub-section (1), if an
offence is alleged to have been committed
between two dates and section 12 of the
Confiscation (Amendment) Act 2002
30 commences on a date between those two
dates, the offence is alleged to have been
committed before the commencement of that
section.
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s. 43
161. Confiscation (Amendment) Act 2002--
disposal orders transitional provision
Part 10, as amended by sections 16 and 17 of
the Confiscation (Amendment) Act 2002,
5 applies with respect to any forfeiture offence
of which a person is convicted after the
commencement of those sections,
irrespective of when the offence is alleged to
have been committed.
10 162. Confiscation (Amendment) Act 2002--
property seized under other Acts
transitional provision
Sections 95A to 95E apply to any property
seized under a warrant issued under section
15 465 of the Crimes Act 1958 or section 81 of
the Drugs, Poisons and Controlled
Substances Act 1981, irrespective of when
the warrant was executed.
163. Confiscation (Amendment) Act 2002--
20 examination orders transitional provision
Section 98(2), as substituted by section 28 of
the Confiscation (Amendment) Act 2002,
applies only in relation to examination orders
for which an application was made after the
25 commencement of section 28 of that Act.
164. Confiscation (Amendment) Act 2002--
document requests transitional provisions
(1) Division 6 of Part 13 applies in relation to
property in respect of which a restraining
30 order was made, irrespective of when the
restraining order was made.
(2) Division 6 of Part 13 applies in relation to
property seized under a warrant issued under
this Act, section 465 of the Crimes Act 1958
35 or section 81 of the Drugs, Poisons and
Controlled Substances Act 1981,
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irrespective of when the warrant was
executed.
165. Confiscation (Amendment) Act 2002--
proceeds of crime transitional provision
5 Section 123, as amended by section 32 of the
Confiscation (Amendment) Act 2002,
applies only with respect to an offence under
section 123 of which a person is convicted
after the commencement of section 32 of that
10 Act.
166. Confiscation (Amendment) Act 2002--
Schedule 1 offences transitional provisions
(1) Items 5A and 13A of Schedule 1 apply only
with respect to an offence alleged to have
15 been committed after the commencement of
section 37 of the Confiscation
(Amendment) Act 2002.
(2) Despite the substitution of item 7(j) of
Schedule 1 by section 37 of the
20 Confiscation (Amendment) Act 2002,
item 7(j), as in force immediately before the
commencement of that section, continues to
apply in respect of an offence referred to in
item 7(j) (as in force immediately before that
25 commencement) which is alleged to have
been committed before the commencement
of that section.
(3) Item 7 of Schedule 1, as amended by section
37 of the Confiscation (Amendment) Act
30 2002, applies only with respect to an offence
alleged to have been committed after the
commencement of that section.
(4) For the purposes of this section, if an offence
is alleged to have been committed between
35 two dates and section 37 of the Confiscation
(Amendment) Act 2002 commences on a
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date between those two dates, the offence is
alleged to have been committed before the
commencement of that section.
167. Confiscation (Amendment) Act 2002--
5 Schedule 2--drug trafficking offences
transitional provisions
(1) Item 1 of Schedule 2, as amended by section
38 of the Confiscation (Amendment) Act
2002, applies only with respect to an offence
10 alleged to have been committed after the
commencement of that section.
(2) For the purposes of sub-section (1), if an
offence is alleged to have been committed
between two dates and section 38 of the
15 Confiscation (Amendment) Act 2002
commences on a date between those two
dates, the offence is alleged to have been
committed before the commencement of that
section.
20 168. Confiscation (Amendment) Act 2002--
Schedule 2 offences transitional provisions
(1) Despite the substitution of item 2 of
Schedule 2 by section 39 of the
Confiscation (Amendment) Act 2002,
25 item 2, as in force immediately before the
commencement of that section, continues to
apply in respect of any offence referred to in
item 2 (as in force immediately before that
commencement) which is alleged to have
30 been committed before the commencement
of that section.
(2) Item 2 of Schedule 2, as amended by section
39 of the Confiscation (Amendment) Act
2002, applies only with respect to an offence
35 alleged to have been committed after the
commencement of that section.
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(3) Items 2A, 2B and 2C of Schedule 2 apply
only with respect to an offence alleged to
have been committed after the
commencement of section 39 of the
5 Confiscation (Amendment) Act 2002.
(4) For the purposes of this section, if an offence
is alleged to have been committed between
two dates and section 39 of the Confiscation
(Amendment) Act 2002 commences on a
10 date between those two dates, the offence is
alleged to have been committed before the
commencement of that section.
169. Confiscation (Amendment) Act 2002--
Schedule 2--money laundering transitional
15 provisions
(1) Despite the amendment of item 3 of
Schedule 2 by section 40 of the
Confiscation (Amendment) Act 2002,
item 3, as in force immediately before the
20 commencement of that section, continues to
apply in respect of any offence referred to in
item 3 (as in force immediately before that
commencement) which is alleged to have
been committed before the commencement
25 of that section.
(2) Item 3 of Schedule 2, as amended by section
40 of the Confiscation (Amendment) Act
2002, applies only with respect to an offence
alleged to have been committed after the
30 commencement of that section.
(3) For the purposes of this section, if an offence
is alleged to have been committed between
two dates and section 40 of the Confiscation
(Amendment) Act 2002 commences on a
35 date between those two dates, the offence is
alleged to have been committed before the
commencement of that section.
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170. Confiscation (Amendment) Act 2002--
Schedule 2--attempts transitional
provisions
(1) Despite the amendment of item 5 of
5 Schedule 2 by section 41 of the
Confiscation (Amendment) Act 2002,
item 5, as in force immediately before the
commencement of that section, continues to
apply in respect of any offence referred to in
10 item 5 (as in force immediately before that
commencement) which is alleged to have
been committed before the commencement
of that section.
(2) Item 5 of Schedule 2, as amended by section
15 41 of the Confiscation (Amendment) Act
2002, applies only with respect to an offence
alleged to have been committed after the
commencement of that section.
(3) For the purposes of this section, if an offence
20 is alleged to have been committed between
two dates and section 41 of the Confiscation
(Amendment) Act 2002 commences on a
date between those two dates, the offence is
alleged to have been committed before the
25 commencement of that section.
171. Confiscation (Amendment) Act 2002--
Schedule 2--common law offences
transitional provisions
(1) Despite the substitution of item 7 of
30 Schedule 2 by section 42 of the
Confiscation (Amendment) Act 2002,
item 7, as in force immediately before the
commencement of that section, continues to
apply in respect of any offence referred to in
35 item 7 (as in force immediately before that
commencement) which is alleged to have
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been committed before the commencement
of that section.
(2) Item 7 of Schedule 2, as amended by section
42 of the Confiscation (Amendment) Act
5 2002, applies only with respect to an offence
alleged to have been committed after the
commencement of that section.
(3) Items 8 and 9 of Schedule 2 apply only with
respect to an offence alleged to have been
10 committed after the commencement of
section 42 of the Confiscation
(Amendment) Act 2002.
(4) For the purposes of this section, if an offence
is alleged to have been committed between
15 two dates and section 42 of the Confiscation
(Amendment) Act 2002 commences on a
date between those two dates, the offence is
alleged to have been committed before the
commencement of that section.
20 172. Interpretation of Legislation Act 1984
The provisions of sections 158 to 171 are in
addition to, and not in derogation from, the
provisions of the Interpretation of
Legislation Act 1984.".
__________________
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Act No.
Part 4--Amendments to Other Acts
s. 44
PART 4--AMENDMENTS TO OTHER ACTS
Division 1--Crimes Act 1958
44. Seizure of tainted property under Crimes Act warrant
See: In section 465 of the Crimes Act 1958, after sub-
Act No.
5 section (1A) insert--
6231.
Reprint No. 16
"(1B) A magistrate who issues a warrant under
as at
1 January
sub-section (1), if satisfied on reasonable
2002
grounds by the evidence given under that
and
amending
sub-section that the thing to which the
Act Nos
10 warrant relates is also tainted property within
45/2001,
11/2002,
the meaning of the Confiscation Act 1997,
16/2002 and
may, in that warrant, direct that the applicant
35/2002.
LawToday:
hold or retain that thing as if it were tainted
www.dms.
property seized under a warrant under
dpc.vic.
gov.au
15 section 79 of that Act as and from the date
when that thing is no longer required for
evidentiary purposes under this Act.".
45. New sections 465A to 465E inserted
After section 465 of the Crimes Act 1958
20 insert--
"465A. Notice that seized thing is being held for
purposes of Confiscation Act 1997
(1) If a thing seized under a warrant issued
under section 465 to which a direction under
25 section 465(1B) applies is no longer required
for evidentiary purposes under this Act, the
person to whom that warrant was issued
must give notice to all persons known to
have an interest in that thing that the thing is
30 being held or retained as if it were tainted
property seized under a warrant under
section 79 of the Confiscation Act 1997.
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(2) A notice under sub-section (1) must be--
(a) given within 7 days after the thing is no
longer required for evidentiary
purposes under this Act; and
5 (b) in the prescribed form.
465B. Application for tainted property to be held
or retained--return of warrant to court
(1) When a thing is brought before the
Magistrates' Court to be dealt with according
10 to law in accordance with the warrant issued
under section 465 under which that thing was
seized, the member of the police force
named in the warrant or another member of
the police force may apply to the Court for a
15 direction that the thing so seized be held or
retained as if it were tainted property seized
under a warrant under section 79 of the
Confiscation Act 1997.
(2) An application may only be made under sub-
20 section (1) if a direction under section
465(1B) was not made in relation to the
warrant when it was issued.
465C. Court may make direction
(1) On an application under section 465B, if the
25 Court is satisfied on reasonable grounds that
the thing seized under the warrant issued
under section 465 is tainted property within
the meaning of the Confiscation Act 1997,
the Court may direct that the thing be held or
30 retained by the member of the police force or
other person named in the warrant as if it
were tainted property seized under a warrant
under section 79 of that Act.
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(2) A direction under this section takes effect on
and from the date that the thing is no longer
required for evidentiary purposes under this
Act.
5 (3) In determining whether the thing which is
the subject of the application is in fact
tainted property within the meaning of the
Confiscation Act 1997, the Court may
require the applicant to provide any
10 information that the Court considers
necessary.
(4) The power of the Court under this section is
in addition to its powers under section 78 of
the Magistrates' Court Act 1989 in relation
15 to seized property.
465D. Notice of direction under section 465C
(1) If the Magistrates' Court makes a direction
under section 465C, the applicant for the
direction must give notice to all persons
20 known to have an interest in the thing to
which the direction applies that the thing is
being held or retained as if it were tainted
property seized under a warrant under
section 79 of the Confiscation Act 1997 by
25 virtue of a direction made under section
465C.
(2) A notice under sub-section (1) must be--
(a) given within 7 days after the thing is no
longer required for evidentiary
30 purposes under this Act; and
(b) in the prescribed form.
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465E. Effect of directions under sections 465(1B)
and 465C
If a direction has been made under section
465(1B) or 465C, the thing to which the
5 direction applies--
(a) is deemed, on and from the date on
which the thing is no longer required
for evidentiary purposes under this Act,
to have been seized as tainted property
10 under a warrant under section 79 of the
Confiscation Act 1997; and
(b) is to be dealt with under that Act
accordingly.".
Division 2--Drugs, Poisons and Controlled Substances Act
15 1981
46. New definition inserted
See:
In section 70(1) of the Drugs, Poisons and Act No.
Controlled Substances Act 1981 insert the 9719.
Reprint No. 6
following definition-- as at
14 February
20 ' "automatic forfeiture quantity", in relation to 2002
a drug of dependence the name of which is and
amending
specified in column 1 of Part 3 of Schedule Act No.
Eleven, means the quantity of that drug, 11/2002.
LawToday:
including any other substance in which it is www.dms.
25 contained or with which it is mixed, that is dpc.vic.
gov.au
specified in column 2B of that Part of that
Schedule opposite to the name of that drug
of dependence;
Note: see the Confiscation Act 1997;'.
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s. 47
47. Seizure of tainted property under Drugs, Poisons and
Controlled Substances Act 1981 warrant
(1) In section 81 of the Drugs, Poisons and
Controlled Substances Act 1981, after sub-
5 section (1) insert--
"(1A) A magistrate who issues a warrant under
sub-section (1), if satisfied on reasonable
grounds by the evidence given under that
sub-section that the thing or document to
10 which the warrant relates is also tainted
property within the meaning of the
Confiscation Act 1997, may, in that warrant,
direct that the applicant hold or retain that
thing or document as if it were tainted
15 property seized under a warrant under
section 79 of that Act as and from the date
when that thing or document is no longer
required for evidentiary purposes under this
Act.
20 (1B) A direction under sub-section (1A)--
(a) may only be made in relation to an
offence under this Act which is a
forfeiture offence within the meaning
of the Confiscation Act 1997; and
25 (b) does not apply to a thing which may be
destroyed or disposed of under sub-
section (3)(e).".
(2) In section 81(3)(d) of the Drugs, Poisons and
Controlled Substances Act 1981, after "away or"
30 insert ", unless a direction under sub-section (1A)
applies,".
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(3) In section 81 of the Drugs, Poisons and
Controlled Substances Act 1981, after sub-
section (4) insert--
"(4A) If a direction under sub-section (1A) was
5 made, a report referred to in sub-section
(4)(b) must also include particulars of
whether a seized thing or document is being
held or retained as if it were tainted property
within the meaning of the Confiscation Act
10 1997 seized under a warrant under section 79
of that Act.".
48. New sections 81A to 81E inserted
After section 81 of the Drugs, Poisons and
Controlled Substances Act 1981 insert--
15 "81A. Notice that seized thing or document is
being held for purposes of Confiscation Act
1997
(1) If a thing or document seized under a
warrant issued under section 81 to which a
20 direction under section 81(1A) applies is no
longer required for evidentiary purposes
under this Act, the person to whom that
warrant was issued must give notice to all
persons known to have an interest in that
25 thing or document that the thing or document
is being held or retained as if it were tainted
property seized under a warrant under
section 79 of the Confiscation Act 1997.
(2) A notice under sub-section (1) must be--
30 (a) given within 7 days after the thing or
document is no longer required for
evidentiary purposes under this Act;
and
(b) in the prescribed form.
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81B. Application for tainted property to be held
or retained--return of warrant to court
(1) When a thing or document is brought before
the Magistrates' Court to be dealt with
5 according to law in accordance with the
warrant issued under section 81 under which
that thing or document was seized, the
member of the police force to whom the
warrant was addressed or another member of
10 the police force may apply to the Court for a
direction that the thing or document so
seized be held or retained as if it were tainted
property seized under a warrant under
section 79 of the Confiscation Act 1997.
15 (2) An application may only be made under sub-
section (1) if a direction under section
81(1A) was not made in relation to the
warrant when it was issued.
81C. Court may make direction
20 (1) On an application under section 81B, if the
Court is satisfied on reasonable grounds that
the thing or document seized under the
warrant issued under section 81 is tainted
property within the meaning of the
25 Confiscation Act 1997, the Court may direct
that the thing or document be held or
retained by the member of the police force as
if it were tainted property seized under a
warrant under section 79 of that Act.
30 (2) A direction under this section takes effect on
and from the date that the thing or document
is no longer required for evidentiary
purposes under this Act.
(3) In determining whether the thing or
35 document which is the subject of the
application is in fact tainted property within
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s. 48
the meaning of the Confiscation Act 1997,
the Court may require the applicant to
provide any information that the Court
considers necessary.
5 81D. Notice of direction under section 81C
(1) If the Magistrates' Court makes a direction
under section 81C, the applicant for the
direction must give notice to all persons
known to have an interest in the thing or
10 document to which the direction applies that
the thing or document is being held or
retained as if it were tainted property seized
under a warrant under section 79 of the
Confiscation Act 1997 by virtue of a
15 direction made under section 81C.
(2) A notice under sub-section (1) must be--
(a) given within 7 days after the thing or
document is no longer required for
evidentiary purposes under this Act;
20 and
(b) in the prescribed form.
81E. Effect of directions under sections 81(1A)
and 81C
If a direction has been made under section
25 81(1A) or 81C, the thing or document to
which the direction applies--
(a) is deemed, on and from the date on
which the thing or document is no
longer required for evidentiary
30 purposes under this Act, to have been
seized as tainted property under a
warrant under section 79 of the
Confiscation Act 1997; and
(b) is to be dealt with under that Act
35 accordingly.".
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s. 49
49. Amendment of Schedule Ten warrant--Drugs,
Poisons and Controlled Substances Act 1981
(1) In Schedule Ten to the Drugs, Poisons and
Controlled Substances Act 1981, before "Given
5 under my hand" insert--
"*(2) in relation to a specified thing or a specified document
to which this warrant relates which is also tainted
property within the meaning of the Confiscation Act
1997, to hold or retain that thing or document as if it
10 were tainted property seized under a warrant under
section 79 of that Act as and from the date when that
thing or document is no longer required for
evidentiary purposes under the Drugs, Poisons and
Controlled Substances Act 1981.".
15 (2) In Schedule Ten to the Drugs, Poisons and
Controlled Substances Act 1981, omit "19"
(where last occurring).
50. New Part 3 of Schedule Eleven to the Drugs, Poisons
and Controlled Substances Act 1981 inserted
20 In Schedule Eleven to the Drugs, Poisons and
Controlled Substances Act 1981, for Part 3
substitute--
"PART 3
Column 1 Column 1A Column 1B Column 2 Column Column Column 3 Column 4
2A 2B
(Large (Large (Commer- (Commer- (Automatic (Traffick- (Small
Commercial Commercial cial cial Forfeiture able Quantity)
Quantity) Quantity) Quantity) Quantity) Quantity) Quantity)
Drug Quantity Quantity of Quantity Quantity Quantity Quantity Quantity
mixture of of mixture
substance and of
drug of substance
dependence and drug
of depend-
ence
AMPHETAMINE 7500 g 250 kg 2500 g 125 kg 750 g 60 g 10 g
COCAINE 7500 g 10 kg 2500 g 5000 g 300 g 30 g 10 g
DIACETYLMORPHINE 7500 g 10 kg 2500 g 5000 g 300 g 30 g 10 g
(Heroin)
LYSERGIC ACID 1500 mg 500 mg 30 mg 15 mg 02 mg
DIETHYLAMIDE
METHYLAMPHETAMINE 7500 g 250 kg 2500 g 125 kg 750 g 60 g 10 g
94
541331B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004
Confiscation (Amendment) Act 2002
Act No.
Part 4--Amendments to Other Acts
s. 50
Column 1 Column 1A Column 1B Column 2 Column Column Column 3 Column 4
2A 2B
(Large (Large (Commer- (Commer- (Automatic (Traffick- (Small
Commercial Commercial cial cial Forfeiture able Quantity)
Quantity) Quantity) Quantity) Quantity) Quantity) Quantity)
Drug Quantity Quantity of Quantity Quantity Quantity Quantity Quantity
mixture of of mixture
substance and of
drug of substance
dependence and drug
of depend-
ence
METHYLENEDIOXY- 7500 g 10 kg 1000 g 5000 g 300 g 30 g 075 g
AMPHETAMINES
3,4-METHYLENEDIOXY- 7500 g 10 kg 1000 g 5000 g 300 g 30 g 075 g
AMPHETAMINE (MDA)
3,4-METHYLENEDIOXY-N- 7500 g 10 kg 1000 g 5000 g 300 g 30 g 075 g
METHYLAMPHETAMINE
(MDMA)
TETRAHYDROCANNABINOL 30 kg 250 kg 10 kg 100 kg 6000 g 250 g 10 g
ANABOLIC AND 50 kg 50 kg 3000 g 5000 g 500 g
ANDROGENIC STEROIDAL
AGENTS, other than in implant
preparations for use in animals
ATAMESTANE 50 kg 50 kg 3000 g 5000 g 500 g
BOLANDIOL 50 kg 50 kg 3000 g 5000 g 500 g
BOLASTERONE 50 kg 50 kg 3000 g 5000 g 500 g
BOLAZINE 50 kg 50 kg 3000 g 5000 g 500 g
BOLDENONE 50 kg 50 kg 3000 g 5000 g 500 g
BOLENOL 50 kg 50 kg 3000 g 5000 g 500 g
CALUSTERONE 50 kg 50 kg 3000 g 5000 g 500 g
CHLORANDROSTENOLONE 50 kg 50 kg 3000 g 5000 g 500 g
CLOSTEBOL 50 kg 50 kg 3000 g 5000 g 500 g
DANAZOL 50 kg 50 kg 3000 g 5000 g 500 g
DIHYDROLONE 50 kg 50 kg 3000 g 5000 g 500 g
DIMETHANDROSTANOLONE 50 kg 50 kg 3000 g 5000 g 500 g
DROSTANOLONE 50 kg 50 kg 3000 g 5000 g 500 g
ENESTEBOL 50 kg 50 kg 3000 g 5000 g 500 g
EPITIOSTANOL 50 kg 50 kg 3000 g 5000 g 500 g
ETHYLDIENOLONE 50 kg 50 kg 3000 g 5000 g 500 g
ETHYLOESTRENOL 50 kg 50 kg 3000 g 5000 g 500 g
FLUOXYMESTERONE 50 kg 50 kg 3000 g 5000 g 500 g
FORMEBOLONE 50 kg 50 kg 3000 g 5000 g 500 g
FURAZABOL 50 kg 50 kg 3000 g 5000 g 500 g
HYDROXYSTENOZOL 50 kg 50 kg 3000 g 5000 g 500 g
MEBOLAZINE 50 kg 50 kg 3000 g 5000 g 500 g
MEPITIOSTANE 50 kg 50 kg 3000 g 5000 g 500 g
MESABOLONE 50 kg 50 kg 3000 g 5000 g 500 g
MESTANOLONE 50 kg 50 kg 3000 g 5000 g 500 g
MESTEROLONE 50 kg 50 kg 3000 g 5000 g 500 g
METHANDIENONE 50 kg 50 kg 3000 g 5000 g 500 g
METHANDRIOL 50 kg 50 kg 3000 g 5000 g 500 g
95
541331B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004
Confiscation (Amendment) Act 2002
Act No.
Part 4--Amendments to Other Acts
s. 50
Column 1 Column 1A Column 1B Column 2 Column Column Column 3 Column 4
2A 2B
(Large (Large (Commer- (Commer- (Automatic (Traffick- (Small
Commercial Commercial cial cial Forfeiture able Quantity)
Quantity) Quantity) Quantity) Quantity) Quantity) Quantity)
Drug Quantity Quantity of Quantity Quantity Quantity Quantity Quantity
mixture of of mixture
substance and of
drug of substance
dependence and drug
of depend-
ence
METHENOLONE 50 kg 50 kg 3000 g 5000 g 500 g
METHYLCLOSTEBOL 50 kg 50 kg 3000 g 5000 g 500 g
METHYLTESTOSTERONE 50 kg 50 kg 3000 g 5000 g 500 g
METHYLTRIENOLONE 50 kg 50 kg 3000 g 5000 g 500 g
METRIBOLONE 50 kg 50 kg 3000 g 5000 g 500 g
MIBOLERONE 50 kg 50 kg 3000 g 5000 g 500 g
NANDROLONE 50 kg 50 kg 3000 g 5000 g 500 g
NORANDROSTENOLONE 50 kg 50 kg 3000 g 5000 g 500 g
NORBOLETHONE 50 kg 50 kg 3000 g 5000 g 500 g
NORCLOSTEBOL 50 kg 50 kg 3000 g 5000 g 500 g
NORETHANDROLONE 50 kg 50 kg 3000 g 5000 g 500 g
NORMETHANDRONE 50 kg 50 kg 3000 g 5000 g 500 g
OVANDROTONE 50 kg 50 kg 3000 g 5000 g 500 g
OXABOLONE 50 kg 50 kg 3000 g 5000 g 500 g
OXANDROLONE 50 kg 50 kg 3000 g 5000 g 500 g
OXYMESTERONE 50 kg 50 kg 3000 g 5000 g 500 g
OXYMETHOLONE 50 kg 50 kg 3000 g 5000 g 500 g
PRASTERONE 50 kg 50 kg 3000 g 5000 g 500 g
PROPETANDROL 50 kg 50 kg 3000 g 5000 g 500 g
QUINBOLONE 50 kg 50 kg 3000 g 5000 g 500 g
ROXIBOLONE 50 kg 50 kg 3000 g 5000 g 500 g
SILANDRONE 50 kg 50 kg 3000 g 5000 g 500 g
STANOLONE 50 kg 50 kg 3000 g 5000 g 500 g
STANOZOLOL 50 kg 50 kg 3000 g 5000 g 500 g
STENBOLONE 50 kg 50 kg 3000 g 5000 g 500 g
TESTOLACTONE 50 kg 50 kg 3000 g 5000 g 500 g
TESTOSTERONE, other than in 50 kg 50 kg 3000 g 5000 g 500 g
implant preparations for use in
animals
THIOMESTERONE 50 kg 50 kg 3000 g 5000 g 500 g
TRENBOLONE, other than in 50 kg 50 kg 3000 g 5000 g 500 g
implant preparations for use in
animals
TRESTOLONE 50 kg 50 kg 3000 g 5000 g 500 g
Note: kg = kilogram
g = gram
mg = milligram".
96
541331B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004
Confiscation (Amendment) Act 2002
Act No.
Part 4--Amendments to Other Acts
s. 51
Division 3--Sentencing Act 1991
51. Property forfeited under automatic forfeiture
See:
(1) In section 5(2A) of the Sentencing Act 1991, Act No.
after paragraph (a) insert-- 49/1991.
Reprint No. 6
5 "(ab) if it is satisfied that property was acquired as at
1 August 2001
lawfully, may have regard to automatic and
forfeiture under the Confiscation Act 1997 amending
Act Nos
in respect of property-- 45/2001,
61/2001,
(i) that was used in, or in connection with, 80/2001,
10 the commission of the offence; 1/2002, 2/2002
and 35/2002.
LawToday:
(ii) that was intended to be used in, or in
www.dms.
connection with, the commission of the dpc.vic.
gov.au
offence;
(iii) that was derived or realised, or
15 substantially derived or realised,
directly or indirectly, from property
referred to in sub-paragraph (i) or (ii);".
(2) In section 5(2A)(e) of the Sentencing Act 1991,
for "must" substitute "subject to paragraph (ab),
20 must".
97
541331B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004
Confiscation (Amendment) Act 2002
Act No.
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
98
541331B.I1-1/11/2002 BILL LA CIRCULATION 25-10-2004
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