Victorian Consolidated Legislation

Confiscation Act 1997 - SECT 3

Definitions

3. Definitions



(1) In this Act-

account means any facility or arrangement through which a financial
institution accepts deposits or allows withdrawals and includes a facility or
arrangement for-

   (a)  a fixed term deposit; and

   (b)  a safety deposit box;

appeal period, in relation to a defendant's conviction of an offence, means
the period ending-

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

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

appropriate officer means-

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

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

automatic forfeiture means-

   (a)  forfeiture under section 35; or

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

* * * * *







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



bank means-

   (a)  the Reserve Bank of Australia; or

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

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

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

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

civil forfeiture means-

   (a)  forfeiture under a civil forfeiture order; or

   (b)  the making of a pecuniary penalty order under Division 2 of Part 8;

* * * * *





civil forfeiture order means an order made under Part 4;

conversion costs means costs referred to in section 135;

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

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

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

defendant, in relation to an offence, means the person who-

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

   (b)  has been convicted of the offence- and in respect of whom an
        application is made under this Act; derived property means property-

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

   (i)  the defendant; or

   (ii) the person who is suspected of having committed a Schedule 2 offence;
        or

   (iii) the applicant for an exclusion order; or

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

   (i)  the defendant; or

   (ii) the person who is suspected of having committed a Schedule 2 offence;
        or

   (iii) the applicant for an exclusion order; or

   (c)  derived or realised, or substantially derived or realised, directly or
        indirectly, from property of a kind referred to in paragraph (a) or
        (b); Note Property is defined as including any interest in property:
        see definition in this section.

Director means the Director of the Australian Transaction Reports and Analysis
Centre established by the Financial Transaction Reports Act 1988 of the
Commonwealth;

disposal order means an order made under section 78; document request means a
request for documents made under Division 6 of Part 13 in relation to property
for which the Secretary has responsibility under a memorandum of understanding
entered into under section 78A; domestic partner of a person means-

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

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

   (i)  for fee or reward; or

   (ii) on behalf of another person or an organisation (including a government
        or government agency, a body corporate or a charitable or benevolent
        organisation);

DPP means Director of Public Prosecutions for Victoria;

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

examination order means an order made under Part 12;

exclusion order means an order made under section 21, 22, 24, 50(1), 52(1) or
54(1);

facsimile copy means a copy obtained by facsimile transmission;

financial institution means-

   (a)  a bank; or

   (b)  a building society; or

   (c)  a credit union; or

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

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

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

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

* * * * *





forfeiture order means an order made under Division 1 of Part 3; freezing
order means an order made under section 31F;





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

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

   (b)  the consideration paid by the defendant; information notice means a
        notice issued under section 118D or 118E;



interest, in relation to property, means-

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

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

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

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

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

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

law enforcement agency means-

   (a)  the DPP; or

   (b)  the police force of Victoria; or

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

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

   (ii) the enforcement of this Act; or

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

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

   (i)  Victoria or any other State; or

   (ii) the Commonwealth; or

   (iii) the Australian Capital Territory or the Northern Territory of
        Australia- that is prescribed for the purposes of this definition;
        legal practitioner means an Australian legal practitioner within the
        meaning of the Legal Profession Act 2004;



monitoring order means an order made under section 116; occupier, in Part 11A,
means a person who appears to be an occupier of, or to be in charge of, the
premises and to be aged 18 years or more;

pecuniary penalty order means an order made under Part 8;

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

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

production order means an order made under section 101;

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

property-tracking document means-

   (a)  a document relevant to-

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

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

   (b)  a document relevant to-

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

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

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

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

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

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

reportable details, in relation to a transaction, means the details of the
transaction that are referred to in Schedule 4 to the
Financial Transaction Reports Act 1988 of the Commonwealth; restrained
property means property, including an interest in property, to which a
restraining order applies;

restraining order means an order made under section 18; Schedule 1 offence
means an offence referred to in Schedule 1 and, in Parts 11 and 13, includes
an interstate offence;

Schedule 2 offence means an offence referred to in Schedule 2 and-

   (a)  if circumstances are specified in Schedule 2 in relation to that
        offence, means an offence committed in those circumstances; and

   (b)  in Parts 11 and 13, includes an interstate offence;

search warrant means (except in Division 2 of Part 13) a search warrant issued
under Part 11 and in Division 2 of Part 13 means a search warrant issued under
that Division; Secretary means the Secretary to the Department of Justice;

seizure warrant means a warrant issued under section 79A;

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

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

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

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

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

   (d)  consideration arising from love and affection;

   (e)  transfer by way of gift;

tainted property, in relation to an offence, means property that-

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

   (b)  was derived or realised, or substantially derived or realised,
        directly or indirectly, from property referred to in paragraph (a); or

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



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

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

   (f)  in the case of an offence against section 195A of the Crimes Act 1958,
        becomes an instrument of crime within the meaning of section 193 of
        that Act; Note Property is defined as including any interest in
        property: see definition in this section.

trustee means-

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

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

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

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

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

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

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

   (b)  in determining whether persons who are not in a registered
        relationship are domestic partners of each other, all the
        circumstances of their relationship are to be taken into account,
        including any one or more of the matters referred to in section 35(2)
        of the Relationships Act 2008 as may be relevant in a particular case;
        and

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