CONFISCATION ACT 1997 - SECT 40V Determination of application for substitution order

CONFISCATION ACT 1997 - SECT 40V

    (1)     Subject to subsection (3), on an application under section 40U, a court may make a substitution order if the court is satisfied that—

        (a)     a person owns or controls the property (the restrained property ) specified in the application as being subject to an unexplained wealth restraining order; and

        (b)     if the restrained property is forfeited to the Minister under unexplained wealth forfeiture, it is unlikely that it will be able to vest in the Minister; and

Examples

The property is held in another jurisdiction or the property has been dealt with contrary to the unexplained wealth restraining order.

        (c)     the person owns or controls property of the same or lesser value (the "excluded property")—

              (i)     in relation to which a section 40S exclusion order has been made excluding the property from the operation of the unexplained wealth restraining order; and

              (ii)     that, if it were subject to the unexplained wealth restraining order, would be available for forfeiture; and

        (d)     it is appropriate that the excluded property be substituted for the restrained property.

    (2)     For the purposes of subsection (1)(d), in determining whether it is appropriate that the excluded property be substituted for the restrained property, the court may have regard to—

        (a)     the extent to which the owner of the property has complied with the unexplained wealth restraining order; and

        (b)     the extent to which the owner's conduct has affected the likelihood of the restrained property being available to vest in the Minister, were it to be subject to unexplained wealth forfeiture; and

        (c)     the extent to which it appears the owner has structured the owner's assets so as to circumvent the operation of this Act; and

        (d)     the likelihood that the restrained property will be subject to forfeiture in another jurisdiction; and

        (e)     the goal of depriving persons engaged in serious criminal activity of property not lawfully acquired.

    (3)     The court must not make an order under subsection (1) in respect of property that is unavailable for forfeiture because the property is held in another jurisdiction if—

        (a)     the property is restrained or has been forfeited in that other jurisdiction under a law corresponding to this Act or any part of this Act; or

        (b)     in the case of property in respect of which an unexplained wealth restraining order was made on the basis that the person who owned or controlled the property has engaged in serious criminal activity—the serious criminal activity occurred outside Victoria.

    (4)     Subsection (3)(b) does not apply to any property that has been moved outside Victoria contrary to the terms of the unexplained wealth restraining order.

    (5)     If the court makes a substitution order under subsection (1)—

        (a)     the excluded property is substituted for the restrained property; and

        (b)     the section 40S exclusion order ceases to have effect, to the extent that it applies to the excluded property; and

        (c)     the restrained property ceases to be subject to the restraining order.

S. 40W inserted by No. 79/2014 s. 16.