Justice Legislation Amendment (Confiscation and Other …FILE/14-079a.docx · Web view2014-10-21 · Justice Legislation Amendment (Confiscation and Other ... Part 2—Amendment

Justice Legislation Amendment (Confiscation and Other Matters) Act 2014

No. 79 of 2014

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purpose 12 Commencement 3

PART 2—AMENDMENT OF CONFISCATION ACT 1997 5

Division 1—Unexplained wealth 5

3 Amendment of purposes 54 Definitions 55 Amendment of objects 76 Meaning of derived property—civil forfeiture 77 New section 7C inserted 7

7C Meaning of serious criminal activity 78 Jurisdiction 99 Heading to Part 2 amended 910 New section 15A substituted 10

15A Property may be subject to both restraining order and other orders 10

11 Application for restraining order 1112 Application for freezing order 1113 Making of freezing order 1114 New section 36J substituted 12

36J Property may be subject to both civil forfeiture restraining order and other orders 12

15 Application for civil forfeiture restraining order 1416 New Part 4A inserted 14

PART 4A—UNEXPLAINED WEALTH 14

Division 1—Unexplained wealth restraining orders 14

40C Unexplained wealth restraining orders 1440D Purpose for which an unexplained wealth restraining

order may be made 1640E Property may be subject to both unexplained wealth

restraining order and other orders 16

1

40F Application for unexplained wealth restraining order 1840G Property lawfully acquired 2140H Procedure on application for unexplained wealth

restraining order 2340I Determination of application for unexplained wealth

restraining order 2540J Notice of unexplained wealth restraining order to be

given to persons affected 2840K Notice requiring declaration of interests in restrained

property 2840L What must be included in a declaration of interests in

restrained property? 2940M Notice to person suspected of engaging in serious

criminal activity 3040N What must be included in a declaration by an owner of

property? 3140O Offences 3240P Court directions to provide information 3340Q Admissibility of statement 3440R Application for exclusion from unexplained wealth

restraining order 3540S Determination of application for exclusion from

unexplained wealth restraining order 3840T Evidentiary requirements for exclusion order 3840U Application for substitution order 3940V Determination of application for substitution order 4040W Further orders 4240X Setting aside of unexplained wealth restraining order 4640Y Registration of unexplained wealth restraining order 4640Z Contravention of unexplained wealth restraining order 47

Division 2—Forfeiture of unexplained wealth 48

40ZA Forfeiture of unexplained wealth 4840ZB Declaration that property has been forfeited 4940ZC Application for exclusion from unexplained wealth

forfeiture 4940ZD Determination of application for exclusion from

unexplained wealth forfeiture 5217 Effect of forfeiture 5318 Power to discharge mortgage or charge 5319 Court may give directions 5320 Disposal of forfeited property 5421 New section 45B inserted 55

45B Relief from unexplained wealth forfeiture 5522 New section 48A inserted 57

48A Discharge of unexplained wealth forfeiture in respect of an interest 57

23 Application to Minister for return of property or payment of value 58

24 Amendment of sections 56 and 57 5825 Liability under forfeiture or pecuniary penalty order to be

satisfied by trustee 5926 Provisions concerning the trustee 5927 Memorandum of understanding 5928 Application for search and inspection warrant 5929 Search and inspection warrant 5930 Order for examination 6031 Heading to section 100 inserted 6132 New section 100A inserted 61

100A Application for production order—unexplained wealth 6133 Production orders 6234 Application for monitoring order 6335 Issuing information notices—authorised police officer 6336 Amendment of sections 118E, 119A and 120A 6337 Interstate orders and search warrants 6338 Costs 6439 Amendment of section 135 6440 Reports to the Minister 6441 Provision of legal aid 6542 New section 189 inserted 65

189 Transitional—Justice Legislation Amendment (Confiscation and Other Matters) Act 2014 65

Division 2—Equitable sharing program 66

43 Crime Prevention and Victims' Aid Fund 6644 New sections 134A and 134B inserted 66

134A Payment of money realised into Consolidated Fund 66134B Payment to other jurisdictions under equitable sharing

program 66

Division 3—Other amendments to Confiscation Act 1997 68

45 Application for exclusion from restraining order 6846 Determination of exclusion application—restraining order—

automatic forfeiture 6847 Contravention of civil forfeiture restraining order 69

PART 3—AMENDMENT OF CRIMINAL ORGANISATIONS CONTROL AND OTHER ACTS AMENDMENT ACT 2014 70

48 Amendment of Part 5 of the Criminal Organisations Control and Other Acts Amendment Act 2014 7038ZAA Appeal against unconditional release 70

PART 4—AMENDMENT OF JUDICIAL PROCEEDINGS REPORTS ACT 1958 73

49 Prohibition of reporting of names 73

PART 5—AMENDMENT OF JURIES ACT 2000 75

50 Crown right to stand aside jurors in criminal trials 7551 Schedule 6 amended 75

16 Justice Legislation Amendment (Confiscation and Other Matters) Act 2014 75

PART 6—AMENDMENT OF PERSONAL SAFETY INTERVENTION ORDERS ACT 2010 76

52 Definition 7653 New section 25A inserted 76

25A Dispute Settlement Centre of Victoria may request mediation information 76

PART 7—AMENDMENT OF ROAD SAFETY CAMERA COMMISSIONER ACT 2011 78

54 Functions 78

PART 8—AMENDMENT OF SENTENCING ACT 1991 79

55 Period and commencement of a community correction order 7956 New section 41A inserted 79

41A Maximum cumulative community correction orders imposable by Magistrates' Court 79

57 Imprisonment and a community correction order 7958 New section 156 inserted 80

156 Transitional provision—Justice Legislation Amendment (Confiscation and Other Matters) Act 2014 80

PART 9—AMENDMENT OF SUMMARY OFFENCES ACT 1966 81

59 New section 51A inserted 8151A Assaulting registered health practitioners 81

60 Consequential amendment—Private Health Care Facilities Act 2014 82

PART 10—AMENDMENT OF OTHER ACTS 83

Division 1—Complicity 83

61 Amendment of the Confiscation Act 1997—serious drug offender regime 83

62 Amendment of the Drugs, Poisons and Controlled Substances Act 1981—serious drug offences 84

63 Amendment of the Sentencing Act 1991—offences against emergency workers 84

64 Amendment of the Sentencing Act 1991 84

Division 2—Amendment of Professional Boxing and Combat Sports Act 1985 85

65 Definition 85

Division 3—Amendment of Sentencing Amendment (Emergency Workers) Act 2014 85

66 Section 2 substituted 852 Commencement 85

67 Amendment of section 4—new section 10AA 8668 New Division 4 of Part 2 inserted 86

Division 4—Consequential amendment—Private Health Care Facilities Act 2014 86

10A Consequential amendment—Private Health Care Facilities Act 2014 86

Division 4—Amendment of Crimes Act 1958 87

69 New section 465AA inserted 87465AA Power to require assistance from person with

knowledge of a computer or computer network 8770 New section 621A inserted 91

621A Transitional provision—Justice Legislation Amendment (Confiscation and Other Matters) Bill 2014 91

Division 5—Statute law revision 91

71 Statute law revision 91

PART 11—REPEAL 92

72 Repeal of amending Act 92═══════════════

ENDNOTES 93

Justice Legislation Amendment (Confiscation and Other Matters) Act

2014†

No. 79 of 2014

[Assented to 21 October 2014]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purpose

The main purpose of this Act is—

(a) to amend the Confiscation Act 1997—

(i) to implement a regime for confiscation of property that has not been lawfully acquired; and

Victoria

1

(ii) to enable payments to be made from the proceeds of forfeited property to other jurisdictions that have contributed to the recovery of the property; and

(iii) to require a person who has applied for an exclusion order from a restraining order made for the purposes of automatic forfeiture of property in reliance on the property having been lawfully acquired to provide documentary evidence of its lawful acquisition; and

(b) to amend the Criminal Organisations Control and Other Acts Amendment Act 2014 in relation to special hearings under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 in the Children's Court; and

(c) to amend the Judicial Proceedings Reports Act 1958 in relation to the publication of matter likely to lead to the identification of persons against whom certain sexual offences are alleged to have been committed; and

(d) to amend the Juries Act 2000 in relation to potential jurors stood aside by the Crown in criminal trials; and

(e) to amend the Personal Safety Intervention Orders Act 2010 to provide for the sharing of information between the Magistrates' Court and the Dispute Settlement Centre of Victoria; and

(f) to amend the Road Safety Camera Commissioner Act 2011 to provide the Road Safety Camera Commissioner with an

Section Page

2

s. 1

additional function to provide advice about the road safety camera system; and

(g) to amend the Sentencing Act 1991 to provide for the maximum period that the Magistrates' Court may—

(i) make a community correction order in respect of one or more offences; and

(ii) make cumulative community correction orders; and

(iii) make a community correction order in addition to a sentence of imprisonment; and

(h) to amend the Summary Offences Act 1966 to create new offences of assaulting a registered health practitioner; and

(i) to amend the Confiscation Act 1997, the Drugs, Poisons and Controlled Substances Act 1981 and the Sentencing Act 1991 consequential on reforms to the law of complicity; and

(j) to make other miscellaneous amendments.

2 Commencement

(1) This Part and Parts 3, 4, 5 and 7 and Divisions 2, 3, 4 and 5 of Part 10 come into operation on the day after the day on which this Act receives the Royal Assent.

(2) Subject to subsection (7), Parts 2, 6, 8, 9 (other than section 60) and 11 come into operation on a day or days to be proclaimed.

(3) Section 60 comes into operation on the later of—

(a) the day on which section 59 comes into operation; or

Section Page

3

s. 2

(b) the day on which section 3 of the Private Health Care Facilities Act 2014 comes into operation.

(4) Sections 61(1) and 62 come into operation on the later of—

(a) the day on which Division 3 of Part 2 of the Criminal Organisations Control and Other Acts Amendment Act 2014 comes into operation; or

(b) the day on which section 7(9) of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 comes into operation.

(5) Sections 61(2) and 64 come into operation on the day on which section 7(9) of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 comes into operation.

(6) Section 63 comes into operation on the later of—

(a) the day on which section 4 of the Sentencing Amendment (Emergency Workers) Act 2014 comes into operation; or

(b) the day on which section 6 of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 comes into operation.

(7) If a provision of this Act (other than section 60 and a provision of Division 1 of Part 10) does not come into operation before 1 July 2015, it comes into operation on that day.

__________________

Section Page

4

s. 2

PART 2—AMENDMENT OF CONFISCATION ACT 1997

Division 1—Unexplained wealth

3 Amendment of purposesSee:Act No.108/1997.Reprint No. 6as at1 April 2012and amendingAct Nos20/2012, 82/2012, 77/2013, 17/2014 and 37/2014.LawToday:www.legislation.vic.gov.aus. 3

After section 1(d) of the Confiscation Act 1997 insert—

"(da) to provide for the forfeiture of property of a person who is unable to satisfy a court that the property was lawfully acquired;".

4 Definitions

In section 3(1) of the Confiscation Act 1997—

(a) in the definition of derived property, after "exclusion order" insert "or in relation to unexplained wealth forfeiture or an unexplained wealth restraining order";

(b) in the definition of gift, in paragraph (b), after "civil forfeiture" insert "or unexplained wealth forfeiture";

Part 2—Amendment of Confiscation Act 1997

Justice Legislation Amendment (Confiscation and Other Matters) Act 2014No. 79 of 2014

5

(c) in the definition of law enforcement agency, in paragraph (ba)(i), for "or a civil forfeiture restraining order" substitute ", a civil forfeiture restraining order or an unexplained wealth restraining order";

(d) in the definition of property-tracking document—

(i) in paragraph (b)(ii), after "tainted property;" insert "or";

(ii) after paragraph (b) insert—

"(c) a document relevant to—

(i) identifying, locating or quantifying property that has not been lawfully acquired; or

(ii) identifying or locating any document necessary for the transfer of property that has not been lawfully acquired;";

(e) in the definition of restrained property, for "or a civil forfeiture restraining order" substitute ", a civil forfeiture restraining order or an unexplained wealth restraining order";

(f) insert the following definitions—

"section 40S exclusion order means an order made under section 40S excluding property or an interest in property from an unexplained wealth restraining order;



6

section 40ZD exclusion order means an order made under section 40ZD excluding property or an interest in property from an unexplained wealth forfeiture;

serious criminal activity has the meaning given in section 7C;

unexplained wealth forfeiture means forfeiture under section 40ZA;

unexplained wealth forfeiture exclusion order means—

(a) a section 40S exclusion order; or

(b) a section 40ZD exclusion order;

unexplained wealth restraining order means an order under section 40I;".

5 Amendment of objects

In section 3A of the Confiscation Act 1997—

(a) in paragraph (c), for "further criminal activity." substitute "further criminal activity; and";

(b) after paragraph (c) insert—

"(d) to undermine the profitability of serious criminal activity.".

6 Meaning of derived property—civil forfeiture

(1) In the heading to section 7A of the Confiscation Act 1997, after "civil forfeiture" insert "or unexplained wealth forfeiture".

(2) In section 7A of the Confiscation Act 1997, after "exclusion order" insert "or in relation to unexplained wealth forfeiture or an unexplained wealth restraining order".

7 New section 7C inserted

s. 4s. 5Part 2—Amendment of Confiscation Act 1997


7

After section 7B of the Confiscation Act 1997 insert—

"7C Meaning of serious criminal activity

For the purposes of this Act, serious criminal activity means—

(a) an act or omission or a course of conduct done or occurring in Victoria that constitutes one or more of the following—

(i) a Schedule 2 offence;

(ii) any other offence that is punishable by a term of imprisonment of 5 years or more and involves theft, fraud, obtaining financial benefit from the crime of another, money laundering, extortion, violence, bribery, corruption, harbouring criminals, blackmail, obtaining or offering a secret commission, perverting the course of justice, tax or revenue evasion, illegal gambling, sex work, production or dissemination of child pornography, drug cultivation, drug trafficking, forgery or homicide;

(iii) an offence against section 7C, 59, 93, 94 or 96 of the Firearms Act 1996;

(iv) an offence against section 195 of the Crimes Act 1958;

(v) an offence of attempting to commit, or of conspiracy or incitement to commit, any offence

s. 7Part 2—Amendment of Confiscation Act 1997


8

referred to in the above paragraphs;

(vi) an offence against a law of the Commonwealth punishable by a term of imprisonment of 5 years or more that involves anything referred to in subparagraph (ii); or

(b) an act or omission or a course of conduct done or occurring in another jurisdiction that—

(i) constitutes an offence in that other jurisdiction; and

(ii) if done or occurring in Victoria, would constitute an offence referred to in paragraph (a).".

8 Jurisdiction

(1) After section 12(2) of the Confiscation Act 1997 insert—

"(2A) The Magistrates' Court or the Children's Court must not make an unexplained wealth restraining order in respect of real property.".


"(5A) The Magistrates' Court or the Children's Court must not make an unexplained wealth restraining order in respect of property unless it is satisfied that the value of the property does not exceed the jurisdictional limit of the Magistrates' Court in civil proceedings, other than proceedings in which damages are claimed that consist of or include damages in respect of personal injury.".



9

9 Heading to Part 2 amended

In the heading to Part 2 of the Confiscation Act 1997, after "CIVIL FORFEITURE RESTRAINING ORDERS" insert "AND UNEXPLAINED WEALTH RESTRAINING ORDERS".

10 New section 15A substituted

For section 15A of the Confiscation Act 1997 substitute—

"15A Property may be subject to both restraining order and other orders

(1) In addition to being subject to a restraining order under this Part, property or an interest in property may be subject to either or both of the following—

(a) a civil forfeiture restraining order;

(b) an unexplained wealth restraining order.

(2) If a restraining order under this Part made for the purposes of section 15(1)(a), (b) or (c) and a civil forfeiture restraining order or an unexplained wealth restraining order (or both) apply in relation to the same property or interest in property, the restraining order under this Part, to the extent that it applies to that property or interest in property, remains in operation until the earliest of the following—

(a) the property being able to be disposed of in accordance with section 44(2) because a civil forfeiture order under Division 2 of Part 4 has been made in



10

relation to the property or interest in property;

(b) the property being able to be disposed of in accordance with section 44(2) because unexplained wealth forfeiture of the property or interest in property has occurred under section 40ZA;

(c) the restraining order ceasing to operate or being set aside in whole or in relation to the property or interest in property under section 27;

(d) the property or interest in property being excluded from the operation of the restraining order by an exclusion order.".

11 Application for restraining order

In section 16(5) of the Confiscation Act 1997, after "civil forfeiture restraining order" insert "or an unexplained wealth restraining order".

12 Application for freezing order

(1) After section 31D(1A) of the Confiscation Act 1997 insert—

"(1B) An authorised police officer may apply to the Magistrates' Court for a freezing order in respect of an account if the applicant suspects on reasonable grounds that—

(a) the person in whose name the account is held or a person who has an interest in the account has engaged in serious criminal activity; and

(b) an application for an unexplained wealth restraining order is likely to be



11

made in respect of money held in that account.".

(2) In section 31D(2) of the Confiscation Act 1997, for "subsection (1) or (1A)" substitute "subsection (1), (1A) or (1B)".

13 Making of freezing order

After section 31F(1A) of the Confiscation Act 1997 insert—

"(1B) On an application under section 31D(1B), the Magistrates' Court may make a freezing order if it is satisfied—

(a) that there are reasonable grounds for suspecting the matters referred to in section 31D(1B)(a) and (b); and

(b) if the application has been made without an affidavit, that—

(i) there are sufficiently urgent circumstances to justify the making of an application without an affidavit; and

(ii) it would have been impracticable for an affidavit to have been 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 applied in person for the freezing order; and

(d) that it is appropriate to make the freezing order.".

14 New section 36J substituted

For section 36J of the Confiscation Act 1997 substitute—



12

"36J Property may be subject to both civil forfeiture restraining order and other orders

(1) In addition to being subject to a civil forfeiture restraining order, property or an interest in property may be subject to either or both of the following—

(a) a restraining order under Part 2;

(b) an unexplained wealth restraining order.

(2) If a civil forfeiture restraining order and a restraining order under Part 2 made for the purposes of section 15(1)(a), (b) or (c) or an unexplained wealth restraining order (or both) apply in relation to the same property or interest in property, the civil forfeiture restraining order, to the extent to which it applies to that property or interest in property, remains in operation until the earliest of the following—

(a) the property being able to be disposed of in accordance with section 44(2) because automatic forfeiture has occurred under section 35 in relation to a Schedule 2 offence;

(b) the property being able to be disposed of in accordance with section 44(2) because the property has been forfeited under section 36GA on the owner of the property being declared to be a serious drug offender;

(c) the property being able to be disposed of in accordance with section 44(2) because a forfeiture order under Division 1 of Part 3 has been made in relation to the same property or interest



13

in property to which the civil forfeiture restraining order applies;

(d) the property being able to be disposed of in accordance with section 44(2) because unexplained wealth forfeiture of the property or interest in property has occurred under section 40ZA;

(e) the civil forfeiture restraining order ceasing to operate or being set aside in whole or in relation to the property or interest in property under section 36X;

(f) the property or interest in property being excluded from the operation of the civil forfeiture restraining order by a civil forfeiture exclusion order.".

15 Application for civil forfeiture restraining order

In section 36K(4) of the Confiscation Act 1997, after "for a restraining order" insert "or an unexplained wealth restraining order".

16 New Part 4A inserted

After Part 4 of the Confiscation Act 1997 insert—

"PART 4A—UNEXPLAINED WEALTH

Division 1—Unexplained wealth restraining orders

40C Unexplained wealth restraining orders

(1) An unexplained wealth restraining order is an order that no property or interest in property, that is property or an interest to which the order applies, is to be disposed of, or otherwise dealt with by any person except in the manner and circumstances (if any) specified in the order.



14

(2) If a provision of this Act confers a power to apply for an unexplained wealth restraining order in respect of property in which a person has an interest, the application may be made in respect of one or more of the following—

(a) specified property of the person;

(b) all the property of the person, including property acquired after the making of the order;

(c) specified property of the person and all other property of the person, including property acquired after the making of the order;

(d) all the property of the person, including property acquired after the making of the order, other than specified property;

(e) specified property of another person.

(3) If the court, when making an unexplained wealth restraining order, considers that the circumstances so require, the order may direct a trustee specified in the order to take control of some or all of the property specified in the order.

(4) An unexplained wealth restraining order may, at the time it is made or at a later time, provide for meeting—

(a) the reasonable living expenses (including the reasonable living expenses of any dependants); and

(b) the reasonable business expenses—

of any person to whose property the order applies if the court that makes or made the order is satisfied that these expenses cannot



15

be met from unrestrained property or income of the person.

(5) The court, in making an unexplained wealth restraining order, must not provide for the payment of legal expenses in respect of any legal proceeding, whether criminal or civil.

(6) Subject to subsections (4) and (5), an unexplained wealth restraining order may be made subject to any conditions that the court making the order thinks fit.

(7) The court may refuse to make an unexplained wealth restraining order if the DPP or another person or body on behalf of the State refuses or fails to give to the court any undertakings that the court considers appropriate concerning the payment of damages or costs in relation to the making and operation of the order.

40D Purpose for which an unexplained wealth restraining order may be made

(1) An unexplained wealth restraining order may be made to preserve property or an interest in property in order that the property or interest will be available to satisfy forfeiture of property that may occur under Division 2.

(2) If a court makes an unexplained wealth restraining order in respect of property or an interest in property, the unexplained wealth restraining order must state that the property or interest is restrained to preserve property or an interest in property so that the property or interest will be available for unexplained wealth forfeiture.



16

40E Property may be subject to both unexplained wealth restraining order and other orders

(1) In addition to being subject to an unexplained wealth restraining order, property or an interest in property may be subject to either or both of the following—

(a) a restraining order under Part 2;

(b) a civil forfeiture restraining order.

(2) If an unexplained wealth restraining order and a restraining order under Part 2 made for the purposes of section 15(1)(a), (b) or (c) or a civil forfeiture restraining order (or both) apply to the same property or interest in property, the unexplained wealth restraining order, to the extent that it applies to that property or interest in property, remains in operation until the earliest of the following—

(a) the property being able to be disposed of in accordance with section 44(2) because automatic forfeiture of the property has occurred under section 35 in relation to a Schedule 2 offence;

(b) the property being able to be disposed of in accordance with section 44(2) because the property has been forfeited under section 36GA on the owner of the property being declared to be a serious drug offender;

(c) the property being able to be disposed of in accordance with section 44(2) because a forfeiture order under



17

Division 1 of Part 3 has been made in relation to the property;

(d) the property being able to be disposed of in accordance with section 44(2) because a civil forfeiture order under Division 2 of Part 4 has been made in relation to the property;

(e) the unexplained wealth restraining order being set aside in whole or in relation to the property or interest in property under section 40X;

(f) the property or interest in property being excluded from the operation of the unexplained wealth restraining order by an unexplained wealth forfeiture exclusion order.

40F Application for unexplained wealth restraining order

(1) The DPP or an appropriate officer may apply without notice to a court for an unexplained wealth restraining order in respect of property if a police officer suspects on reasonable grounds that—

(a) a person has engaged in serious criminal activity; and

(b) that person has an interest in the property; and

(c) in the case of property located outside Victoria—that serious criminal activity occurred within Victoria; and

(d) the total value of the property that is the subject of the application is $50 000 or more.

(2) The DPP or an appropriate officer may apply without notice to a court for an unexplained



18

wealth restraining order in respect of property if a police officer suspects on reasonable grounds that—

(a) the property was not lawfully acquired; and

(b) either—

(i) the property is located in Victoria; or

(ii) the person who has acquired the property is ordinarily resident in Victoria.

(3) An application under subsection (1) or (2) must be supported by an affidavit of a police officer—

(a) setting out any relevant matters; and

(b) in the case of an application under subsection (1), stating that the police officer suspects that—

(i) a person has engaged in serious criminal activity; and

(ii) that person has an interest in the property; and

(iii) in the case of property located outside Victoria—that serious criminal activity occurred within Victoria; and

(iv) the total value of the property that is the subject of the application is $50 000 or more; and

(c) in the case of an application under subsection (2), stating that the police officer suspects that—



19

(i) the property was not lawfully acquired; and

(ii) either—

(A) the property is located in Victoria; or

(B) the person who has acquired the property is ordinarily resident in Victoria; and

(d) setting out the grounds on which the police officer has the suspicion referred to in paragraph (b) or (c) (as the case may be).

(4) In addition, an affidavit supporting an application under subsection (2) must identify the person who has or the persons who have an interest in the property suspected of not having been lawfully acquired if that information is known to the police officer at the time of the application.

(5) An application under subsection (1) for an unexplained wealth restraining order does not need to specify a particular offence constituting the serious criminal activity but may specify one or more offences that constitute the serious criminal activity.

(6) For the purposes of this section, property in which a person has an interest includes—

(a) property that is subject to the effective control of the person; and

(b) property that was the subject of a gift from the person to another person regardless of when the gift was made.

(7) An application for a restraining order or a civil forfeiture restraining order in relation to property or an interest in property does not



20

preclude an application for an unexplained wealth restraining order being made in relation to the same property or interest in property.

(8) An application for an unexplained wealth restraining order may be made more than once in respect of the same property or interest in property.

Example

Separate applications under subsections (1) and (2) may be made in respect of the same property or the same interest in property.

(9) An application for an unexplained wealth restraining order in relation to property or an interest in property made on the basis of serious criminal activity does not preclude an application for a further unexplained wealth restraining order being made in relation to other property or another interest in property on the basis of the same serious criminal activity.

40G Property lawfully acquired

(1) For the purposes of this Part—

(a) property acquired by a person for sufficient consideration that has otherwise been lawfully acquired is taken to have been lawfully acquired only if the consideration given for the property by the person was lawfully acquired;

(b) property acquired by a person other than for sufficient consideration or on the distribution of the estate of a deceased person is taken to have been lawfully acquired only if the person



21

from whom it was acquired or the deceased person (as the case may be) lawfully acquired the property;Note

The effect of paragraph (b) is that if, for example, the donor of property given as a gift to the person received the property as a gift from someone else who acquired the property unlawfully, the property remains property that has not been lawfully acquired.

(c) property acquired by a person as a prize or as the proceeds of any form of gambling is taken to have been lawfully acquired only if any money or other item of value used by the person for the purposes of entering the prize draw or for the purposes of the gambling (as the case may be) was lawfully acquired;

(d) property acquired by a person in the form of investment income is taken to have been lawfully acquired only if the property from which the investment income was derived was lawfully acquired;

(e) property derived by a person from salary or wages or from payment under a contract for services is taken to have been lawfully acquired only if the salary or wages or the payment for the services (as the case may be)—

(i) did not exceed the reasonable market rate applying at the time for the labour or services provided; or

(ii) were lawfully acquired by the person from whom they were received;



22

(f) property acquired by a person that is derived property is not property lawfully acquired unless—

(i) the property was acquired for sufficient consideration; and

(ii) the person acquired the property without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was derived property.

(2) Subsection (1) does not limit the criteria for determining for the purposes of this Part whether or not property has been lawfully acquired.

(3) Despite subsection (1)(f), a person who acquires the property from the sale or disposal of the property under this Act lawfully acquires the property unless any consideration paid for the property has not been lawfully acquired.

40H Procedure on application for unexplained wealth restraining order

(1) On an application under section 40F, if the court, having regard to the matters referred to in subsection (2), is satisfied that the circumstances of the case justify the giving of notice to a person affected, the court may direct an applicant for an unexplained wealth restraining order to give notice of the application for that order to any person whom the court has reason to believe has an interest in the property that is the subject of the application.

(2) In determining whether the circumstances of the case justify the giving of notice, the court must have regard to—



23

(a) the aim of preserving the property that is the subject of the application so as to ensure its availability for the purpose of unexplained wealth forfeiture; and

(b) any jeopardy to an investigation by a law enforcement agency into criminal activity that could result from the giving of notice; and

(c) any risk to the safety or security of a person, including a potential witness in any criminal proceeding, that could result from the giving of notice; and

(d) the provision made by this Act to enable a person claiming an interest in property the subject of an unexplained wealth restraining order to apply for a section 40S exclusion order to protect that interest from the operation of the unexplained wealth restraining order; and

(e) the limited duration of an unexplained wealth restraining order; and

(f) the submissions, if any, made by the applicant in relation to the giving of notice.

(3) In determining whether to direct an applicant to give notice of an application for an unexplained wealth restraining order, the court may have regard to any other matter that the court considers relevant.

(4) If the court requires notice of an application for an unexplained wealth restraining order to be given under subsection (1) and the application is withdrawn because of that requirement, the



24

court must not award costs in relation to the application.

(5) If the court does not require notice of an application for an unexplained wealth restraining order to be given under subsection (1), it may hear and determine the application in the absence of any person who has an interest in the property that is the subject of the application.

(6) Any person notified under subsection (1) is entitled to appear and to give evidence at the hearing of the application but the absence of that person does not prevent the court from making an unexplained wealth restraining order.

(7) The court may—

(a) order that the whole or any part of the proceeding be heard in closed court; or

(b) order that only persons or classes of persons specified by it may be present during the whole or any part of the proceeding; or

(c) make an order prohibiting the publication of a report of the whole or any part of the proceeding or of any information derived from the proceeding.

(8) The court must cause a copy of any order made under subsection (7) to be posted on a door of the court house or in another conspicuous place where notices are usually posted at the court house.

(9) A person must not contravene an order posted under subsection (8).



25

Penalty: Imprisonment for 12 months or 1000 penalty units.

40I Determination of application for unexplained wealth restraining order

(1) On an application under section 40F(1) for an unexplained wealth restraining order, the court must make an unexplained wealth restraining order if it is satisfied that—

(a) the deponent of the affidavit supporting the application does suspect that—

(i) a person has engaged in serious criminal activity; and

(ii) that person has an interest in the property sought to be restrained; and

(iii) in the case of property located outside Victoria—the serious criminal activity occurred in Victoria; and

(iv) the total value of the property is $50 000 or more; and

(b) there are reasonable grounds for the suspicion referred to in paragraph (a)(i), (ii) and (iii).

(2) The court may be satisfied that the deponent of the affidavit reasonably suspects that a person with an interest in the property has engaged in serious criminal activity—

(a) regardless of whether that person, or any other person, has been charged with, tried for, acquitted or convicted of, or has had a conviction quashed, pardoned or set aside for, an offence



26

that is, or offences that are, suspected of constituting the serious criminal activity; and

(b) where more than one offence is specified as constituting the serious criminal activity—if the court is satisfied that the deponent reasonably suspects that the conduct of the person constitutes at least one of those offences.

(3) On an application under section 40F(2) for an unexplained wealth restraining order, the court must make an unexplained wealth restraining order if it is satisfied that—

(a) the deponent of the affidavit supporting the application does suspect that—

(i) the property sought to be restrained was not lawfully acquired; and

(ii) either—

(A) the property is located in Victoria; or

(B) the person who has acquired the property is ordinarily resident in Victoria; and

(b) there are reasonable grounds for that suspicion.

(4) For the purposes of subsection (3)(b), in determining whether there are reasonable grounds for suspecting that property was not lawfully acquired, the court may have regard to one or more of the following—

(a) the lawful income of a person with an interest in, or effective control of, the property;



27

(b) any suspected unlawful activity of a person with an interest in, or effective control of, the property;

(c) the prior ownership of the property and any suspected unlawful activity of a person, or persons, who previously owned the property;

(d) the circumstances under which the property has come to the attention of Victoria Police;

(e) any other relevant matter.

40J Notice of unexplained wealth restraining order to be given to persons affected

(1) If—

(a) an unexplained wealth restraining order is made in respect of property of a person; and

(b) notice had not been given to that person of the application for the unexplained wealth restraining order—

the applicant must give written notice of the making of the unexplained wealth restraining order to that person.

(2) If a person to whom notice must be given under subsection (1) cannot be found after all reasonable steps have been taken to locate the person, the applicant must give notice to that person in any other manner that the court directs.

Note

Section 40C provides that an unexplained wealth restraining order may be made in respect of property or an interest in property.



28

40K Notice requiring declaration of interests in restrained property

(1) Subject to subsection (2), if an unexplained wealth restraining order is made in respect of property, a police officer must give a notice to each person who the applicant for the unexplained wealth restraining order believes has an interest in that property requiring the person to give to the police officer a written declaration of interests in restrained property.

(2) If a notice under section 40M is given to a person who the applicant for the unexplained wealth restraining order believes has an interest in property restrained under the unexplained wealth restraining order, a police officer may, but is not required to, issue a notice under subsection (1).

(3) A notice under subsection (1) must—

(a) be in the prescribed form; and

(b) state the effect of section 40O.

40L What must be included in a declaration of interests in restrained property?

(1) A person who has been given a notice under section 40K must provide a written declaration in relation to each item of property specified to be restrained in the unexplained wealth restraining order that states whether that person—

(a) has an interest in the item of property; and

(b) believes that any other person has an interest in the item of property.

(2) If the person making the declaration of interests in restrained property states that the



29

person has an interest in an item of property, the person must also state in the declaration the nature and extent of that interest, including—

(a) in relation to a mortgage, the current value of the debt secured by the mortgage; and

(b) in relation to any security interest other than a mortgage, the current value of the debt secured by the interest in the property.

(3) If the person making the declaration of interests in restrained property believes that any other person has an interest in the property, the person making the declaration must state to the best of his or her knowledge the name and address of every other person who has an interest in the property.

Notes

1 An interest in property is defined in section 3(1) as meaning—

(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.

2 The nature of an interest in land, for example, may be an interest in fee simple, a leasehold interest or a security interest such as a mortgage.

3 The extent of an interest, for example, may be the whole of the property or some lesser specified interest, such as a half-interest as a tenant in common.

40M Notice to person suspected of engaging in serious criminal activity

(1) If an unexplained wealth restraining order is made under section 40I(1) on the basis that a person is suspected of having engaged in



30

serious criminal activity, a police officer may give a notice to the person requiring the person to give to the police officer a written declaration of the person's property interests.

(2) A notice under subsection (1) must—

(a) be in the prescribed form; and

(b) state the effect of section 40O.

(3) If a person suspected of having engaged in serious criminal activity is also a person to whom a notice under section 40K must be given—

(a) a notice under subsection (1) may be given in place of the notice under section 40K; and

(b) the giving of a notice to the person under section 40K does not preclude the giving of a notice to the person under subsection (1) at a later date.

40N What must be included in a declaration by an owner of property?

(1) Subject to subsection (2), a person who has been given a notice under section 40M must provide a written declaration of property interests that states the following information—

(a) particulars of any sources of income of the person, including bequests;

(b) any bank or building society accounts held by the person, whether solely or jointly;

(c) any real property in which the person holds an interest;



31

(d) any unit trusts, ledgers, shares or debentures in which the person holds an interest;

(e) the amount of any cash held by the person, including cash held as virtual currency, and the source of the cash;

(f) any motor vehicles, boats, works of art, livestock or jewellery owned by the person that have an individual value of $5000 or more;

(g) any safe deposit boxes held by the person;

(h) any charge and credit cards held by the person;

(i) any accounts held by the person for the purposes of gambling;

(j) any trusts in which the person has a beneficial interest;

(k) any transfers of property made by the person to another person in the previous 6 years if the total value of those transfers is $50 000 or more;

(l) any transfers of property to the person made by another person in the previous 6 years if the total value of those transfers is $50 000 or more.

(2) In addition, if a notice under section 40M is given to a person in place of a notice under section 40K, the declaration must include any statement required under section 40L.Note

Section 40M(3)(a) provides that a notice under section 40M may be given to a person in place of a notice under section 40K.



32

40O Offences

(1) A person who is given a notice under section 40K must not, without reasonable excuse, fail to give the declaration of property interests required by that notice to a police officer within 14 days after the notice is given to the person.

Penalty: Level 9 fine (60 penalty units maximum).

(2) A person who is given a notice under section 40M must not, without reasonable excuse, fail to give the declaration of property interests required by that notice to a police officer within 28 days after the notice is given to the person.


(3) A person who is given a notice under section 40K or 40M must not make a statement in the declaration of property interests required by that notice that is false or misleading in a material particular.


40P Court directions to provide information

(1) If a person who has been given a notice under section 40K or 40M—

(a) is convicted of an offence under section 40O(1), (2) or (3); 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 notice under section 40K or 40M—



33

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 interests.

(2) If a person who has been given a notice under section 40K or 40M—

(a) is convicted of any other offence; 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 notice under section 40K or 40M; 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 40K or 40M—

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 interests.

40Q Admissibility of statement

(1) A statement made by a person in a declaration of property interests given in response to a notice under section 40K or 40M is 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—

but is not otherwise admissible in evidence against that person.



34

(2) Any information, document or other thing obtained as a direct or indirect consequence of making a statement in a declaration of property interests given in response to a notice under section 40K or 40M is 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—

but is not otherwise admissible in evidence against that person.

40R Application for exclusion from unexplained wealth restraining order

(1) If a court makes an unexplained wealth restraining order against property, any person claiming an interest in the property may apply to the court that made that order for a section 40S exclusion order.

(2) An application under subsection (1) must be made—

(a) if notice is required to be given under section 40J—within 90 days after service of notice of the making of the unexplained wealth restraining order; or

(b) in any other case—within 90 days after the making of the unexplained wealth restraining order.

(3) Subject to subsection (4), the court may extend the period within which an application may be made, whether or not that period has expired, if it is in the interests of justice to do so.

(4) The court may not extend the period within which an application may be made in respect



35

of property that has been forfeited by or under this Act.

(5) An applicant must give notice of the application, and, subject to subsection (10), of the grounds on which it is made—

(a) to the applicant for the unexplained wealth restraining order; and

(b) to any other person whom the applicant has reason to believe has an interest in the property.

(6) Any person referred to in subsection (5) is entitled to appear and to give evidence at the hearing of an application for a section 40S exclusion order but the absence of that person does not prevent the court from making a section 40S exclusion order.

(7) If the person referred to in subsection (5)(a) proposes to contest an application for a section 40S exclusion order, that person must give the applicant notice of the grounds on which the application is to be contested.

(8) If a person claiming an interest in the property is charged with an offence, any statement made or evidence given by the person in support of an application under this section is admissible against that person in a proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person.

(9) If a person claiming an interest in the property is charged with an offence, any information, document or thing obtained as a direct or indirect consequence of any statement made or evidence given by the person in support of an application under this section is admissible against that person in a



36

proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person.

(10) If—

(a) a person applies under this section for a section 40S exclusion order; and

(b) that person is charged with an offence relevant to the application for the section 40S exclusion order; and

(c) that person has made an application under subsection (11)—

the person need not give notice of the grounds on which the application for the section 40S exclusion order is made until the application under subsection (11) has been determined.

(11) Any person referred to in subsection (5) may apply to the court for an order that the hearing of the application for a section 40S exclusion order be stayed until the charge referred to in subsection (10)(b)—

(a) is finally determined; or

(b) is withdrawn.

(12) The court may only order that the hearing of the application for a section 40S exclusion order be stayed if the court considers that not ordering a stay of the hearing would prejudice the fairness of the hearing of the charge.



37

Notes

1 Section 40C provides that an unexplained wealth restraining order may be made in respect of property or an interest in property.

2 Section 40W enables the court to make orders varying the property to which the unexplained wealth restraining order relates.

40S Determination of application for exclusion from unexplained wealth restraining order

(1) On an application under section 40R, the court may make an order excluding the applicant's interest in property from the operation of the unexplained wealth restraining order if the court is satisfied that the property was lawfully acquired by the applicant.

(2) For the purposes of this section, the applicant's interest in property is presumed not to have been lawfully acquired unless the applicant proves otherwise.

(3) An order under subsection (1) made in respect of an interest in property excludes the interest in property from the unexplained wealth restraining order with effect from—

(a) 30 days after the date of the order; or

(b) such later date as the court sees fit.

(4) If the court makes an order under subsection (1) the court may also make an order declaring the nature, extent and value of the applicant's interest in the property.

40T Evidentiary requirements for exclusion order

(1) At a hearing of an application for an section 40S exclusion order, the applicant for



38

the order must provide documentary evidence of any transactions alleged by the applicant to have occurred that would support the claim that the property that is the subject of the application was lawfully acquired by the applicant.

(2) The court hearing the application may accept evidence other than documentary evidence if—

(a) that other evidence is provided in addition to documentary evidence of the transaction; or

(b) the court is satisfied that it is not reasonable to expect documentary evidence to exist because of the nature of the transfer of property, the effluxion of time or any other reason.

40U Application for substitution order

(1) If—

(a) a court has made a section 40S exclusion order excluding property (the excluded property) from the operation of an unexplained wealth restraining order; and

(b) the owner of the excluded property owns or controls other property (the restrained property), not less than the value of the excluded property, which remains subject to the unexplained wealth restraining order but is unlikely to be able to vest in the Minister—

the applicant for the unexplained wealth restraining order may apply to the court for a substitution order to substitute the excluded



39

property for the restrained property for the purposes of unexplained wealth forfeiture.

(2) An application under subsection (1) must be made within 30 days after the making of the section 40S exclusion order and must—

(a) specify the excluded property; and

(b) specify the restrained property; and

(c) state why, in the opinion of the applicant, it is unlikely that the restrained property is unlikely to be able to vest in the Minister.

(3) On the application for a substitution order under subsection (1), the section 40S exclusion order is stayed to the extent that it applies to the excluded property until a determination of the application is made under section 40V.

40V Determination of application for substitution order

(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; andExamples



40

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



41

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



42

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

40W Further orders

(1) The court may make any orders in relation to the property to which the unexplained wealth restraining order relates as it considers just.

(2) An order under subsection (1) may be made—

(a) when the court makes an unexplained wealth restraining order; or

(b) at any later time.

(3) An order under subsection (1) may be made on the application of—

(a) the applicant for the unexplained wealth restraining order; or

(b) a person to whose property the unexplained wealth restraining order relates or who has an interest in that property; or

(c) a trustee, if the unexplained wealth restraining order directed the trustee to take control of property; or

(d) a prescribed person, or a person belonging to a prescribed class of persons; or

(e) any other person who obtains the leave of the court to apply.

(4) Any person referred to in subsection (3) is entitled to appear and to give evidence at the hearing of an application under this section but the absence of that person does not prevent the court from making an order.



43

(5) The applicant for an order under subsection (1) must give written notice of the application to each other person referred to in subsection (3)(a) to (3)(c) who could have applied for the order.

(6) Examples of the kind of order that the court may make under subsection (1) include the following—

(a) an order varying the property to which the unexplained wealth restraining order relates;

(b) an order varying any condition to which the unexplained wealth restraining order is subject;

(c) an order providing for the reasonable living expenses and reasonable business expenses of any person referred to in section 40C(4);

(d) an order relating to the carrying out of any undertaking given under section 40C(7) in relation to the unexplained wealth restraining order;

(e) an order for examination under Part 12;

(f) an order directing any person whose property the unexplained wealth restraining order relates to or any other person to furnish to such person as the court directs, within the period specified in the order, a statement, verified by the oath or affirmation of that person, setting out such particulars of the property to which the unexplained wealth restraining order relates as the court thinks proper;



44

(g) an order directing any relevant registration authority not to register any instrument affecting property to which the unexplained wealth restraining order relates while it is in force except in accordance with the order;

(h) if the unexplained wealth restraining order did not direct a trustee to take control of property in accordance with section 40C(3), an order directing a trustee to take control of property at any later time specified in the order under subsection (1);

(i) if the unexplained wealth restraining order directed a trustee to take control of property—

(i) an order regulating the manner in which the trustee may exercise powers or perform duties under the unexplained wealth restraining order;

(ii) an order determining any question relating to the property;

(j) an order directing a person to whose property the unexplained wealth restraining order relates or who has an interest in that property to use or manage specified property to which the unexplained wealth restraining order relates, subject to conditions specified in the order;

(k) an order directing a person prescribed for the purposes of subsection (3)(d), if that person so consents, to do any activity specified in the order that is reasonably necessary for the purpose of



45

managing specified property to which the unexplained wealth restraining order relates.Example

The court may direct the carrying out of repairs on restrained premises.

Note

Property is defined as including any interest in property. See section 3(1).

40X Setting aside of unexplained wealth restraining order

On the application of the applicant for an unexplained wealth restraining order, the court that made the unexplained wealth restraining order may make an order setting aside the unexplained wealth restraining order if satisfied that the unexplained wealth restraining order is no longer required or appropriate.

40Y Registration of unexplained wealth restraining order

(1) If—

(a) an unexplained wealth restraining order applies to property of a particular kind; and

(b) any law of Victoria provides for the registration of title to, or encumbrances on, or documents relating to the title to property of that kind—

the relevant registration authority under that law must, on application to it by the applicant for the unexplained wealth restraining order, record on the register the prescribed particulars of the unexplained wealth restraining order.



46

(2) Without limiting subsection (1), if an unexplained wealth restraining order relates to land under the operation of the Transfer of Land Act 1958, a caveat may be lodged under section 89 of that Act by any person referred to in that section in relation to that order.

(3) For the purposes of subsection (2) and without limiting that subsection the following persons are taken to be a person mentioned in section 89 of the Transfer of Land Act 1958—

(a) the applicant for the unexplained wealth restraining order;

(b) if the unexplained wealth restraining order directed a trustee to take control of the property, the trustee.

Note


40Z Contravention of unexplained wealth restraining order

(1) A person who knowingly contravenes an unexplained wealth restraining order by disposing of, or otherwise dealing with, an interest in property to which the order applies is guilty of an indictable offence and liable to—

(a) level 5 imprisonment (10 years maximum); or

(b) a level 5 fine (1200 penalty units maximum) or a fine not exceeding the value of the interest (as determined by the court), whichever is greater—



47

or to both.

(2) If the prescribed particulars referred to in section 40Y(1) are recorded as required by that section, a person who disposes of, or otherwise deals with, an interest in property after the recording of those particulars is, for the purposes of subsection (1), to be taken to know of the unexplained wealth restraining order.

Division 2—Forfeiture of unexplained wealth

40ZA Forfeiture of unexplained wealth

(1) Subject to subsection (2), property that is the subject of an unexplained wealth restraining order is forfeited to the Minister on the expiry of 6 months after the making of the unexplained wealth restraining order.

(2) If, on the expiry of the 6 months referred to in subsection (1), an application under section 40R is still pending, the restrained property is forfeited to the Minister—

(a) if the application is refused or dismissed—

(i) at the end of the period during which the person may appeal against the refusal or dismissal; or

(ii) if an appeal against the refusal or dismissal is lodged—when the appeal is abandoned or finally determined without the order having been made; or

(b) if the application is withdrawn or struck out—on that withdrawal or striking out.



48

(3) For the purposes of subsection (2), an application under section 40R is not pending unless an application under section 40R(1) has been made—

(a) within the period referred to in section 40R(2); or

(b) where, under section 40R(3), the court has extended the period in which the application may be made—within the period as so extended and before the expiry of the period of 6 months referred to in subsection (1).

40ZB Declaration that property has been forfeited

(1) The applicant for an unexplained wealth restraining order may apply to the court that made that order for a declaration that property that was subject to the unexplained wealth restraining order has been forfeited to the Minister under section 40ZA.

(2) An applicant under this section for a 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.Note


(3) On an application under subsection (1), the court, if satisfied that the property has been forfeited to the Minister under section 40ZA, must make a declaration accordingly.

40ZC Application for exclusion from unexplained wealth forfeiture



49

(1) Subject to subsection (2), if property is forfeited to the Minister under section 40ZA, a person who claims to have had an interest in the property immediately before it was forfeited may apply to the court that made the relevant unexplained wealth restraining order for a section 40ZD exclusion order excluding the interest in the property from unexplained wealth forfeiture.

(2) The application—

(a) must not be made except with the leave of the court; and

(b) must be made before the end of the period of 60 days commencing on the day on which the property is forfeited to the Minister.

(3) Subject to subsection (4), the court may grant a person leave under subsection (2)(a) to make an application if it is satisfied that the person's failure to seek to have that person's interest in the property excluded from the unexplained wealth restraining order was not due to neglect on the part of the applicant.

(4) The court may not grant a person leave under subsection (3) to make an application in respect of property that has been disposed of in accordance with section 44.

(5) An applicant must give written notice of the application, and, subject to subsection (10), of the grounds on which it is made—



50

(a) to the applicant for the unexplained wealth restraining order; and

(b) to any person whom the applicant has reason to believe had an interest in the property immediately before it was forfeited; and

(c) to a person prescribed for the purposes of section 44(1).

(6) Any person notified under subsection (5) is entitled to appear and to give evidence at the hearing of the application but the absence of that person does not prevent the court from making a section 40ZD exclusion order.

(7) If the applicant for the unexplained wealth restraining order proposes to contest an application under this section for a section 40ZD exclusion order, that applicant must give the applicant for the section 40ZD exclusion order written notice of the grounds on which the application for the section 40ZD exclusion order is to be contested.

(8) If a person claiming an interest in the property is charged with an offence, any statement made or evidence given by the person in support of an application under this section is admissible against that person in a proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person.

(9) If a person claiming an interest in the property is charged with an offence, any information, document or thing obtained as a direct or indirect consequence of any statement made or evidence given by the person in support of an application under this



51

section is admissible against that person in a proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person.

(10) If—

(a) a person applies under this section for a section 40ZD exclusion order; and

(b) that person is charged with an offence relevant to the application for the section 40ZD exclusion order; and

(c) that person has made an application under subsection (11)—

the person need not give notice of the grounds on which the application for the section 40ZD exclusion order is made until the application under subsection (11) is determined.

(11) The applicant for the section 40ZD exclusion order or any person referred to in subsection (5)(a) or (b) may apply to the court for an order that the hearing of the application for the exclusion order be stayed until the charge referred to in subsection (10)(b)—

(a) is finally determined; or

(b) is withdrawn.

(12) The court may only order that the hearing of the application for a section 40ZD exclusion order be stayed if the court considers that not ordering a stay of the hearing would prejudice the fairness of the hearing of the charge.



52

40ZD Determination of application for exclusion from unexplained wealth forfeiture

(1) On an application made under section 40ZC, the court may make an order excluding the applicant's interest in property from the operation of unexplained wealth forfeiture if the court is satisfied that the property was lawfully acquired by the applicant.

(2) For the purposes of this section, the applicant's interest in property is presumed not to have been lawfully acquired unless the applicant proves otherwise.

(3) The evidentiary requirements specified in section 40T apply to a hearing of an application for an exclusion order under this section.

(4) If the court makes an exclusion order under subsection (1), it may also make an order declaring the nature, extent and value of the applicant's interest in the property.

__________________".

17 Effect of forfeiture

(1) In section 41(2) of the Confiscation Act 1997—

(a) in paragraph (b), for "section 35 or 36GA—" substitute "section 35 or 36GA; or";

(b) after paragraph (b) insert—

"(ba) property is forfeited to the Minister by unexplained wealth forfeiture under section 40ZA—";

(c) for "automatic forfeiture occurred" substitute "automatic forfeiture or unexplained wealth forfeiture occurred".

(2) In section 41(3) and (4) of the Confiscation Act 1997, after "under section 35 or 36GA" insert



53

"or by unexplained wealth forfeiture under section 40ZA".

18 Power to discharge mortgage or charge

In section 42(1) of the Confiscation Act 1997, after "automatic forfeiture" insert "or unexplained wealth forfeiture".

19 Court may give directions

In section 43 of the Confiscation Act 1997, after "automatic forfeiture" insert "or unexplained wealth forfeiture".

20 Disposal of forfeited property

(1) In section 44(1) of the Confiscation Act 1997, after "section 35 or 36GA" insert "or by unexplained wealth forfeiture under section 40ZA".

(2) For section 44(2) of the Confiscation Act 1997 substitute—

"(2) Except with the leave of the relevant court, the Minister must not—

(a) dispose of, or otherwise deal with, the property; or

(b) authorise any other person or body to dispose of, or otherwise deal with, the property—

before the end of the appeal period, if any, or, if an application has been made under section 49, 51 or 53 for an exclusion order or under section 40A for a section 40B exclusion order or under section 40ZC for a section 40ZD exclusion order, before the final determination of the application, whichever is later.



54

(2A) For the purposes of subsection (2), the relevant court is—

(a) in the case of property forfeited under a forfeiture order or a civil forfeiture order—the court which made the order;

(b) in the case of property forfeited by automatic forfeiture—the court in which the accused was convicted;

(c) in the case of property forfeited by unexplained wealth forfeiture—the court which made the unexplained wealth restraining order.".


(a) in paragraph (c), for "determined." substitute "determined;";


"(d) in the case of unexplained wealth forfeiture, when an appeal may no longer be lodged against a refusal to make a section 40S exclusion order or, if such an appeal is lodged, when the appeal is abandoned or finally determined.".

(4) After section 44(3A) of the Confiscation Act 1997 insert—

"(3B) Despite subsection (2), the Minister is not prevented from taking action specified in subsection (2)(a) or (b) after the end of the appeal period but before the final determination of an application under section 40ZC for a section 40ZD exclusion order unless the application was made within the period referred to in section 40ZC(2)(b).".



55

(5) In sections 44(4) and (6) of the Confiscation Act 1997, after "section 35 or 36GA" insert "or by unexplained wealth forfeiture under section 40ZA".

21 New section 45B inserted

After section 45A of the Confiscation Act 1997 insert—

"45B Relief from unexplained wealth forfeiture

(1) If property is forfeited under section 40ZA, a person may apply to the court that made the unrestrained wealth restraining order for relief from the forfeiture of the property.

(2) An application under subsection (1) must be made within 60 days after the property is forfeited to the Minister.

(3) Subject to subsection (4), the court—

(a) may order that the person is entitled to be paid a specified amount out of the forfeited property, being an amount that the court thinks is necessary to prevent undue hardship to the person caused by the unexplained wealth forfeiture; and

(b) may make ancillary orders for the purpose of ensuring the proper application of an amount so paid to a person who is under 18 years of age.

(4) The court may make an order under subsection (3) if satisfied that—

(a) there are no outstanding applications for a section 40ZD exclusion order in relation to the property; and

(b) undue hardship may reasonably be likely to be caused to the applicant by unexplained wealth forfeiture.



56

(5) An applicant for an order under subsection (1) must give written notice of the application to the applicant for the unexplained wealth restraining order in relation to which unexplained wealth forfeiture occurred.".

22 New section 48A inserted

After section 48 of the Confiscation Act 1997 insert—

"48A Discharge of unexplained wealth forfeiture in respect of an interest

(1) Unexplained wealth forfeiture under section 40ZA is discharged in respect of an interest in property—

(a) if a section 40ZD exclusion order in respect of the interest is made, whether on appeal or otherwise; or

(b) if a payment is made to discharge it in accordance with section 56 or 57.

(2) If unexplained wealth forfeiture is discharged in the manner referred to in subsection (1)(a), the applicant for the unexplained wealth restraining order must—

(a) as soon as practicable after the discharge, give written notice of the discharge to all persons whom the applicant has reason to believe may have had an interest in the property



57

immediately before it was forfeited; and

(b) if required to do so by a court, give written notice of the discharge to a specified person or class of persons in the manner and within the time that the court considers appropriate.

(3) A notice under subsection (2) must include a statement to the effect that a person claiming to have an interest in the property immediately before it was forfeited may make an application under section 55.".

23 Application to Minister for return of property or payment of value


(a) in paragraph (c), for "section 48(1)(a)—" substitute "section 48(1)(a); or";


"(d) unexplained wealth forfeiture is discharged in the manner referred to in section 48A(1)(a)—".

(2) In section 55(2) of the Confiscation Act 1997, after "section 40B exclusion order" insert "or a section 40ZD exclusion order".

(3) In section 55(4) of the Confiscation Act 1997, for "section 14(4), 36H(4), 45 or 45A" substitute "section 14(4), 36H(4), 40C(4), 45 or 45A".


(a) in paragraph (a), after "section 40B(2)" insert "or 40ZD(4)";

(b) in paragraph (b), for "section 14(4), 36H(4), 45 or 45A" substitute "section 14(4), 36H(4), 40C(4), 45 or 45A".



58


(a) in paragraph (a), after "section 40B(2)" insert "or 40ZD(4)";

(b) for "section 14(4), 36H(4), 45 or 45A" substitute "section 14(4), 36H(4), 40C(4), 45 or 45A".

24 Amendment of sections 56 and 57

In sections 56(1) and 57(1) of the Confiscation Act 1997, for "Part 3 or Part 4" substitute "Part 3, Part 4 or Part 4A".

25 Liability under forfeiture or pecuniary penalty order to be satisfied by trustee

(1) In section 75(1) of the Confiscation Act 1997, after "civil forfeiture restraining order" insert "or an unexplained wealth restraining order";


(a) after "section 35 or 36GA" insert "or unexplained wealth forfeiture";

(b) after "or the automatic forfeiture" insert "or the unexplained wealth forfeiture".

26 Provisions concerning the trustee

In section 76 of the Confiscation Act 1997—

(a) after "a civil forfeiture restraining order" (wherever occurring) insert "or an unexplained wealth restraining order";

(b) after "the civil forfeiture restraining order" (wherever occurring) insert "or the unexplained wealth restraining order".

27 Memorandum of understanding

In section 78A(1)(b) of the Confiscation Act 1997, after "a civil forfeiture restraining order"



59

insert "or an unexplained wealth restraining order".

28 Application for search and inspection warrant

In section 97A(1)(a) of the Confiscation Act 1997, after "a civil forfeiture restraining order" insert "or an unexplained wealth restraining order".

29 Search and inspection warrant

In section 97B(5)(c) of the Confiscation Act 1997, after "civil forfeiture restraining order" insert ", an unexplained wealth restraining order".

30 Order for examination

(1) After section 98(2A) of the Confiscation Act 1997 insert—

"(2B) If a court is satisfied that an unexplained wealth restraining order has been made against property and that 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—

(a) the affairs of any person, including—

(i) any property in which the person or any other person has or may have an interest; or

(ii) any property to which the applicant for the order suspects on reasonable grounds has not been lawfully acquired; and

(b) issues connected with the effective management and maintenance of any property referred to in paragraph (a), including income, expenditure or liabilities in relation to the property.".



60


(a) for "subsection (2)" substitute "subsection (2) or (2B)";

(b) after paragraph (ab) insert—

"(ac) if an unexplained wealth restraining order is or has been made, the court which made the unexplained wealth restraining order; or".

31 Heading to section 100 inserted

For the heading to section 100 of the Confiscation Act 1997 insert—

"Application for production order—relevant offence".



"100A Application for production order—unexplained wealth

(1) If a person is suspected of having engaged in serious criminal activity, a police officer may, without notice, apply for a production order against that person or any other person.

(2) An application under subsection (1) must be supported by an affidavit of the applicant—

(a) stating that a person is suspected of having engaged in serious criminal activity; and

(b) stating that the police officer suspects that the person against whom the order is sought has possession or control of a



61

property-tracking document or property-tracking documents in relation to the serious criminal activity; and

(c) setting out the grounds on which the applicant holds those suspicions.

(3) The court hearing an application under subsection (1) may require the applicant to give it any additional information that it requires concerning the grounds on which the order is sought.

(4) An application under subsection (1) must be heard in closed court.".

33 Production orders

(1) In section 101(1) of the Confiscation Act 1997, for "section 100(2)" substitute "section 100(2) or 100A(1)".

(2) In section 101(3) of the Confiscation Act 1997, for "If the applicant's" substitute "In the case of an application under section 100(2), if the applicant's".


"(3A) In the case of an application under section 100A(1), if the applicant's affidavit—

(a) states that a person is suspected of having engaged in serious criminal activity; and

(b) states that the applicant believes that property specified in the application—

(i) is subject to the effective control of a person suspected of having engaged in serious criminal activity; or



62

(ii) was the subject of a gift from that person; and

(c) sets out the grounds on which the applicant holds that belief—

the court may if it considers that, having regard to the matters contained in that affidavit and to any other sworn evidence before it, there are reasonable grounds for doing so, treat any document relevant to identifying, locating or quantifying that property as a property-tracking document in relation to the serious criminal activity.".

34 Application for monitoring order

In section 115(2)(a) of the Confiscation Act 1997—

(a) in subparagraph (iii), for "offence; and" substitute "offence; or";

(b) after subparagraph (iii) insert—

"(iv) has engaged in serious criminal activity; and".

35 Issuing information notices—authorised police officer

In section 118D(2)(a) of the Confiscation Act 1997—

(a) in subparagraph (iii), for "offence; and" substitute "offence; or";

(b) after subparagraph (iii) insert—

"(iv) has engaged in serious criminal activity; and".

36 Amendment of sections 118E, 119A and 120A



63

In sections 118E(3)(a), 119A(a)(ii) and 120A(2) of the Confiscation Act 1997, after "civil forfeiture restraining order" insert "or an unexplained wealth restraining order".

37 Interstate orders and search warrants

In section 131(2) of the Confiscation Act 1997—

(a) in paragraph (b), after "automatic forfeiture" insert "or an unexplained wealth restraining order";

(b) in paragraph (c), after "civil forfeiture restraining order" insert "or any unexplained wealth restraining order".

38 Costs

(1) After section 133A(3) of the Confiscation Act 1997 insert—

"(3A) If—

(a) a person brings, or appears at, proceedings under this Act before a court in order—

(i) to prevent an unexplained wealth restraining order from being made against property of the person; or

(ii) to have property of the person excluded from an unexplained wealth restraining order or from unexplained wealth forfeiture; and

(b) the person is successful in those proceedings—

the court may order the applicant for the unexplained wealth restraining order to pay all the costs incurred by the person in



64

connection with the proceedings or any part of those costs that is determined by the court.".

(2) In section 133A(4) of the Confiscation Act 1997, for "subsections (2) and (3)" substitute "subsections (2), (3) and (3A)".

39 Amendment of section 135

In section 135 of the Confiscation Act 1997, after "section 35 or 36GA" insert "or unexplained wealth forfeiture under section 40ZA".

40 Reports to the Minister

In section 139A(1)(d) of the Confiscation Act 1997, after "civil forfeiture restraining order" insert "or an unexplained wealth restraining order".

41 Provision of legal aid


(a) in paragraph (a), after "a civil forfeiture restraining order" insert "or an unexplained wealth restraining order";

(b) in paragraphs (a) and (b), after "the civil forfeiture restraining order" insert "or the unexplained wealth restraining order".

(2) In section 143(6) of the Confiscation Act 1997, after "the civil forfeiture restraining order" insert "or the unexplained wealth restraining order".

42 New section 189 inserted


"189 Transitional—Justice Legislation Amendment (Confiscation and Other Matters) Act 2014



65

(1) An application under section 40F for an unexplained wealth restraining order may be made in relation to serious criminal activity whether that activity occurred before or after the commencement of section 16 of the Justice Legislation Amendment (Confiscation and Other Matters) Act 2014.

(2) An application under section 40F for an unexplained wealth restraining order may be made on the basis that property has not been lawfully acquired whether that property was acquired before or after the commencement of section 16 of the Justice Legislation Amendment (Confiscation and Other Matters) Act 2014.".

Division 2—Equitable sharing program

43 Crime Prevention and Victims' Aid Fund

Section 134(3) of the Confiscation Act 1997 is repealed.

44 New sections 134A and 134B inserted


"134A Payment of money realised into Consolidated Fund

(1) Subject to subsection (2), all money realised under a forfeiture order, a civil forfeiture order or a pecuniary penalty order or by automatic forfeiture under section 35 or unexplained wealth forfeiture under section 40ZA or money paid to the State under an equitable sharing program, within the meaning of section 134B, must be paid into the Consolidated Fund.



66

(2) Money must not be paid into the Consolidated Fund if the money is required to be paid—

(a) to a person or body under section 75(1); or

(b) to another jurisdiction under section 134B.

134B Payment to other jurisdictions under equitable sharing program

(1) Subject to subsection (2), the Minister may direct that a payment be made to another jurisdiction of an amount out of property forfeited under this Act or out of the proceeds of the disposal of property forfeited under this Act.

(2) The Minister may give a direction under subsection (1) if—

(a) the other jurisdiction participates in an equitable sharing program with the State; and

(b) in the Minister's opinion, the other jurisdiction has made a significant contribution to the recovery of the forfeited property.Example

The other jurisdiction has made a significant contribution to the investigation or prosecution of the illegal activity associated with the forfeited property.

(3) Subject to subsection (4), the amount that the Minister may direct to be paid under subsection (1) is at the discretion of the Minister.

(4) The Minister must not direct the payment of money under subsection (1) if that money is



67

required to be paid to a person or body under section 75(1).

(5) In this section—

equitable sharing program means an arrangement under which—

(a) the State shares a proportion of property forfeited, or an amount payable, to the State under this Act with another jurisdiction that has made a significant contribution to the recovery of the property or the amount; and

(b) each other participating jurisdiction shares with the State a proportion of property forfeited, or an amount payable, to the jurisdiction under a corresponding law if, in the opinion of the appropriate Minister of that jurisdiction, Victoria has made a significant contribution to the recovery of the property or amount.".

Division 3—Other amendments to Confiscation Act 1997

45 Application for exclusion from restraining order

After section 20(2) of the Confiscation Act 1997 insert—

"(2A) An application for an exclusion order must include documentary evidence of any transactions relating to the transfer of property alleged by the applicant to have occurred that would support the application.".

46 Determination of exclusion application—restraining order—automatic forfeiture



68

After section 22(1) of the Confiscation Act 1997 insert—

"(1A) If the applicant alleges that transactions have occurred relating to the transfer of property that would support the application for the exclusion order, the court hearing the application may accept evidence other than documentary evidence of those transactions if—

(a) that other evidence is provided in addition to documentary evidence of the transaction; or

(b) the court is satisfied that it is not reasonable to expect documentary evidence to exist because of the nature of the transfer of property, the effluxion of time or any other reason.".

47 Contravention of civil forfeiture restraining order

In section 36Z of the Confiscation Act 1997—

(a) omit "whichever is greater of";

(b) in paragraph (b), after "by the court)" insert ", whichever is greater".

__________________



69

PART 3—AMENDMENT OF CRIMINAL ORGANISATIONS CONTROL AND OTHER ACTS AMENDMENT ACT 2014

48 Amendment of Part 5 of the Criminal Organisations Control and Other Acts Amendment Act 2014

In section 125 of the Criminal Organisations Control and Other Acts Amendment Act 2014, after proposed new section 38Z of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert—

"38ZAA Appeal against unconditional release

(1) The Director of Public Prosecutions may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court against an order for unconditional release under section 38Y(4)(b) if he or she considers that—

(a) the order should not have been made; and

(b) an appeal should be brought in the public interest.

(2) An appeal under subsection (1) is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the order is made.

(3) A notice of appeal under subsection (2) must be signed by the Director of Public Prosecutions personally.

(4) A copy of the notice of appeal must be served personally on the child in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed.



70

(5) The Director of Public Prosecutions must provide a copy of the notice of appeal to the legal practitioner who last represented the child in the special hearing, if that legal practitioner can reasonably be identified.

(6) A notice of appeal must be in the form prescribed by the rules of the appellate court.

(7) The Children's Court must transmit a notice of appeal filed under this section to the appellate court.

(8) On an appeal under subsection (1), the appellate court may—

(a) confirm the order; or

(b) set aside the order and by order declare that the child is liable to supervision under Division 5.

(9) The appellate court must not declare a child liable to supervision unless the court considers that the declaration is necessary in all the circumstances including—

(a) whether supervision is available in the community; and

(b) whether the child has complied with community supervision and the extent of that compliance; and

(c) whether a declaration is required for the protection of the child or the community.

(10) If the appellate court declares a child liable to supervision, the appellate court may—

(a) remit the matter, with or without directions, to the Children's Court; or

(b) make a supervision order in respect of the child.



71

(11) If the appellate court remits a matter to the Children's Court under subsection (10)(a), that court must make a supervision order in respect of the child in accordance with this Act and any directions given by the appellate court.

(12) The appellate court may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child pending the making of a supervision order in respect of the child.".

__________________



72

PART 4—AMENDMENT OF JUDICIAL PROCEEDINGS REPORTS ACT 1958

49 Prohibition of reporting of namesSee:Act No.6280.Reprint No. 3as at6 April 2000and amendingAct Nos114/2003, 18/2005, 68/2009, 17/2014 and 37/2014.LawToday:www.legislation.vic.gov.aus. 49

(1) In section 4(1) of the Judicial Proceedings Reports Act 1958, for the definition of publish substitute—

"publish means disseminate or provide access to the public or a section of the public by any means, including by—

(a) publication in a book, newspaper, magazine or other written publication; or

(b) broadcast by radio or television; or

(c) public exhibition; or

(d) broadcast or electronic communication—

other than for a purpose connected with a judicial proceeding;".

(2) In section 4(1) of the Judicial Proceedings Reports Act 1958, insert the following definitions—

"Judicial College of Victoria means the Judicial College of Victoria established under the Judicial College of Victoria Act 2001;



73

Sentencing Advisory Council means the Sentencing Advisory Council established under Part 9A of the Sentencing Act 1991;".

(3) After section 4(1C) of the Judicial Proceedings Reports Act 1958 insert—

"(1D) This section does not prevent a disclosure of information that is made for the purpose of enabling—

(a) the Judicial College of Victoria to perform its functions under the Judicial College of Victoria Act 2001; or

(b) the Sentencing Advisory Council to perform its functions under Part 9A of the Sentencing Act 1991.".

__________________



74

PART 5—AMENDMENT OF JURIES ACT 2000

50 Crown right to stand aside jurors in criminal trialsSee:Act No.53/2000.Reprint No. 3as at16 May 2012and amendingAct Nos66/2011, 70/2011, 26/2012, 82/2012, 12/2013, 67/2013, 17/2014, 26/2014 and 37/2014.LawToday:www.legislation.vic.gov.aus. 50

For section 38(3) and (4) of the Juries Act 2000 substitute—

"(3) A potential juror who has been required to stand aside by the Crown under this section—

(a) must not be empanelled on the jury in that trial; and

(b) must return to the jury pool and may be selected or allocated to a panel in another trial.".

51 Schedule 6 amended

After clause 15 of Schedule 6 to the Juries Act 2000 insert—

"16 Justice Legislation Amendment (Confiscation and Other Matters) Act 2014

The amendment made to section 38 by section 50 of the Justice Legislation



75

Amendment (Confiscation and Other Matters) Act 2014 applies only in relation to a panel selected or allocated on or after the commencement of section 50 of that Act.".

__________________



76

PART 6—AMENDMENT OF PERSONAL SAFETY INTERVENTION ORDERS ACT 2010

52 Definition

In section 24 of the Personal Safety Intervention Orders Act 2010 insert the following

definition—

"Dispute Settlement Centre of Victoria means the mediation provider known as the Dispute Settlement Centre of Victoria, declared by Order of the Governor in Council on 7 June 1994 under section 21K of the Evidence (Miscellaneous Provisions) Act 1958 to be a dispute settlement centre;".


After section 25 of the Personal Safety Intervention Orders Act 2010 insert—

"25A Dispute Settlement Centre of Victoria may request mediation information

(1) The Dispute Settlement Centre of Victoria may, for the purpose of assessing whether a matter is suitable for mediation, request from the Magistrates' Court records or documents held by the Magistrates' Court that relate to an application for a personal safety intervention order under Division 1 of Part 3.

(2) Despite subsection (1), the Dispute Settlement Centre of Victoria must not request information about an application—

(a) made to the Children's Court, unless the matter is transferred to the Magistrates'

s. 52

See:Act No.53/2010and amendingAct Nos16/2011, 20/2011, 48/2011, 65/2011, 52/2013, 77/2013, 37/2014 and 42/2014.LawToday:www.legislation.vic.gov.au



77

Court under section 105(2); or

(b) made by a police officer under section 15(e); or

(c) that is continued as an application for a personal safety intervention order under section 136(2)(b).

(3) On receiving a request under subsection (1), a registrar of the Magistrates' Court may provide the Dispute Settlement Centre of Victoria with records or documents held by the Magistrates' Court that relate to the application for the personal safety intervention order.".

__________________



78

PART 7—AMENDMENT OF ROAD SAFETY CAMERA COMMISSIONER ACT 2011

54 Functions

After section 10(f) of the Road Safety Camera Commissioner Act 2011 insert—

"(fa) to provide information about the road safety camera system in response to a request for information from a person or body;".

__________________

s. 54

See:Act No.47/2011and amendingAct Nos47/2011, 55/2013 and 77/2013.LawToday:www.legislation.vic.gov.au



79

PART 8—AMENDMENT OF SENTENCING ACT 1991

55 Period and commencement of a community correction order

See:Act No.49/1991.Reprint No. 16as at1 July 2014 and amending Act Nos 32/2013, 77/2013, 15/2014, 17/2014, 37/2014 and 47/2014.LawToday:www.legislation.vic.gov.aus. 55

For section 38(1)(a) of the Sentencing Act 1991 substitute—

"(a) in the case of an order made by the Magistrates' Court—

(i) in respect of one offence, 2 years; or

(ii) in respect of 2 offences, 4 years; or

(iii) in respect of 3 or more offences, 5 years; or".


After section 41 of the Sentencing Act 1991 insert—

"41A Maximum cumulative community correction orders imposable by Magistrates' Court

The Magistrates' Court must not impose on an offender in respect of several offences committed at the same time cumulative community correction orders to take effect in succession for a period exceeding in the whole 5 years.".



80

57 Imprisonment and a community correction order

After section 44(1A) of the Sentencing Act 1991 insert—

"(1B) In sentencing an offender in accordance with subsection (1) or (1A) in respect of offences committed at the same time, the Magistrates' Court must not impose a sentence that exceeds in the whole 5 years.".

58 New section 156 inserted

At the end of Part 12 of the Sentencing Act 1991 insert—

"156 Transitional provision—Justice Legislation Amendment (Confiscation and Other Matters) Act 2014

The amendments made to this Act by Part 8 of the Justice Legislation Amendment (Confiscation and Other Matters) Act 2014 apply to the sentencing of an offender on or after the commencement of that Part, irrespective of when the offence was committed or the finding of guilt was made.".

__________________



81

PART 9—AMENDMENT OF SUMMARY OFFENCES ACT 1966


After section 51 of the Summary Offences Act 1966 insert—

"51A Assaulting registered health practitioners

(1) If a registered health practitioner—

(a) is employed, self-employed or engaged to provide, or support the provision of, care or treatment in a hospital to a person; and

(b) is in the hospital or on the hospital premises—

a person must not assault the practitioner, knowing or being reckless as to whether the practitioner is a health practitioner.

Penalty: 60 penalty units or imprisonment for 6 months.

(2) If a registered health practitioner—

(a) is employed, self-employed or engaged to provide, or support the provision of, care or treatment, other than in a hospital, to a person; and

(b) is providing, or supporting the provision of, care or treatment to a person in the course of that employment, self-employment or engagement—

See:Act No.7405.Reprint No. 11as at27 April 2012and amendingAct Nos27/2011, 5/2012, 26/2012, 27/2012, 32/2013, 70/2013, 77/2013, 15/2014, 26/2014 and 37/2014.LawToday:www.legislation.vic.gov.au



82

a person must not assault the practitioner, knowing or being reckless as to whether the practitioner is a health practitioner acting in accordance with paragraph (b).

Penalty: 60 penalty units or imprisonment for 6 months.

(3) In this section—

health practitioner and registered health practitioner have the same meanings as in the Health Practitioner Regulation National Law;

hospital means a public hospital, private hospital, denominational hospital or day procedure centre within the meaning of the Health Services Act 1988;

hospital premises includes parking areas, driveways, courtyards and forecourts on the premises occupied by a hospital.".

60 Consequential amendment—Private Health Care Facilities Act 2014

In section 51A(3) of the Summary Offences Act 1966, for the definition of hospital substitute—

"hospital means—

(a) a public hospital or a denominational hospital within the meaning of the Health Services Act 1988; or

(b) a private health care facility within the meaning of the Private Health Care Facilities Act 2014;".

__________________



83

PART 10—AMENDMENT OF OTHER ACTS

Division 1—Complicity

61 Amendment of the Confiscation Act 1997—serious drug offender regime

(1) In section 3(1) of the Confiscation Act 1997, in the definition of serious drug offence, for paragraph (d) substitute—

"(d) section 80(1) (inciting)—where the offence that is incited is an offence specified in paragraph (a) or (b);

(e) section 80(3)(b) (aiding, abetting etc. an offence outside Victoria)—where the offence that is aided, abetted, counselled or procured is an offence that, if committed in Victoria, would be an offence specified in paragraph (a) or (b);".

(2) For clause 1(d) of Schedule 2 to the Confiscation Act 1997 substitute—

"(d) section 80(1) (inciting) where the offence that is incited is an offence referred to in paragraph (a), (ab), (ac), (ad), (b) or (ba), committed in the circumstances referred to in those paragraphs;

(e) section 80(3)(b) (aiding, abetting etc. an offence outside Victoria) where the offence that is aided, abetted, counselled or procured is an offence committed in the circumstances referred to in paragraph (a), (ab), (ac), (ad), (b) or (ba) under a law in force in a place outside Victoria that is a corresponding law in relation to section 71, 71AA, 71AB, 71AC, 72 or 72A, as the case requires.".



84

62 Amendment of the Drugs, Poisons and Controlled Substances Act 1981—serious drug offences

See:Act No.9719.Reprint No. 10as at30 November 2012and amendingAct Nos57/2012, 82/2012, 70/2013, 9/2014, 13/2014, 37/2014 and 47/2014.LawToday:www.legislation.vic.gov.aus. 62

(1) In the note at the foot of section 80(1) of the Drugs, Poisons and Controlled Substances Act 1981 omit "aided, abetted, counselled, procured, solicited or".

(2) In the note at the foot of section 80(3) of the Drugs, Poisons and Controlled Substances Act 1981, for "counselled, procured, solicited or incited" substitute "counselled or procured".

63 Amendment of the Sentencing Act 1991—offences against emergency workers

(1) For section 10AA(6)(a) of the Sentencing Act 1991 substitute—

"(a) who is involved in the commission of the offence within the meaning of section 323(1)(a) or (b) of the Crimes Act 1958; or".

(2) The note at the foot of section 10AA(6)(a) of the Sentencing Act 1991 is repealed.

64 Amendment of the Sentencing Act 1991



85

For clause 4(a)(vi) of Schedule 1 to the Sentencing Act 1991 substitute—

"(vi) section 80(1) (inciting) where the offence that is incited is an offence against section 71, 71AA, 72 or 72A of that Act;

(via) section 80(3)(b) (aiding, abetting etc. an offence outside Victoria) where the offence that is aided, abetted, counselled or procured is an offence under a law in force in a place outside Victoria that is a corresponding law in relation to section 71, 71AA, 72 or 72A of that Act;".

Division 2—Amendment of Professional Boxing and Combat Sports Act 1985

65 DefinitionSee:Act No.10183.Reprint No. 3as at7 November 2013and amendingAct No.37/2014.LawToday:www.legislation.vic.gov.aus. 65

In section 5 of the Professional Boxing and Combat Sports Act 1985, in the definition of prohibited person, for paragraph (f) substitute —

"(f) who has been convicted of an offence against a law of the Commonwealth or another State or a Territory and given a sentence of a kind corresponding to that specified in paragraph (a); or".



86

Division 3—Amendment of Sentencing Amendment (Emergency Workers) Act 2014

66 Section 2 substituted

For section 2 of the Sentencing Amendment (Emergency Workers) Act 2014 substitute—

"2 Commencement

(1) Division 4 of Part 2 comes into operation on the later of—

(a) the day on which section 4 comes into operation; or

(b) the day on which section 3 of the Private Health Care Facilities Act 2014 comes into operation.

(2) Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3) If a provision referred to in subsection (2) does not come into operation before 1 July 2015, it comes into operation on that day.".

67 Amendment of section 4—new section 10AA

In section 4 of the Sentencing Amendment (Emergency Workers) Act 2014, in proposed new section 10AA(8), for the definition of hospital substitute—

"hospital means a public hospital, private hospital, denominational hospital or day procedure centre within the meaning of the Health Services Act 1988.".

68 New Division 4 of Part 2 inserted

After Division 3 of Part 2 of the Sentencing Amendment (Emergency Workers) Act 2014



87

insert—

'Division 4—Consequential amendment—Private Health Care Facilities Act 2014

10A Consequential amendment—Private Health Care Facilities Act 2014

In section 10AA(8) of the Sentencing Act 1991, for the definition of hospital substitute—

"hospital means—

(a) a public hospital or a denominational hospital within the meaning of the Health Services Act 1988; or

(b) a private health care facility within the meaning of the Private Health Care Facilities Act 2014.".'.

Division 4—Amendment of Crimes Act 1958

69 New section 465AA inserted

After section 465 of the Crimes Act 1958 insert—

"465AA Power to require assistance from person with knowledge of a computer or computer network

(1) This section applies if a magistrate has issued a warrant under section 465 in relation to a building, receptacle, place or vehicle (warrant premises).

(2) The Magistrates' Court may, on the application of a police officer of or above the rank of senior sergeant, make an order requiring a specified person to provide any information or assistance that is reasonable



88

and necessary to allow a police officer to do one or more of the things specified in subsection (3).

(3) The things are—

(a) access data held in, or accessible from, a computer or data storage device that—

(i) is on warrant premises; or

(ii) has been seized under the warrant and is at a place other than warrant premises;

(b) copy to another data storage device data held in, or accessible from, a computer, or data storage device, described in paragraph (a);

(c) convert into documentary form or another form intelligible to a police officer—

(i) data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or

(ii) data held in a data storage device to which the data was copied as described in paragraph (b).

(4) An application may be made under subsection (2) at the same time as an application is made for the warrant under section 465 or at any time after the issue of the warrant.

(5) The Magistrates' Court may make the order if satisfied that—

(a) there are reasonable grounds for suspecting that data held in, or



89

accessible from, a computer, or data storage device, described in subsection (3)(a) will afford evidence as to the commission of an indictable offence; and

(b) the specified person is—

(i) reasonably suspected of having committed an indictable offence in relation to which the warrant was issued; or

(ii) the owner or lessee of the computer or device; or

(iii) an employee of the owner or lessee of the computer or device; or

(iv) a person engaged under a contract for services by the owner or lessee of the computer or device; or

(v) a person who uses or has used the computer or device; or

(vi) a person who is or was a system administrator for the computer network of which the computer or device forms or formed a part; and

(c) the specified person has relevant knowledge of—

(i) the computer or device or a computer network of which the computer or device forms or formed a part; or

(ii) measures applied to protect data held in, or accessible from, the computer or device.



90

(6) A person is not excused from complying with an order on the ground that complying with it may result in information being provided that might incriminate the person.

(7) If—

(a) the computer or data storage device that is the subject of the order is seized under the warrant; and

(b) the order was granted on the basis of an application made before the seizure—

the order does not have effect on or after the completion of the execution of the warrant.Note

An application for another order under this section relating to the computer or data storage device may be made after the completion of the execution of the warrant.

(8) If the computer or data storage device is not on warrant premises, the order must—

(a) specify the period within which the person must provide the information or assistance; and

(b) specify the place at which the person must provide the information or assistance; and

(c) specify the conditions (if any) to which the requirement to provide the information or assistance is subject.

(9) A person commits an offence if—

(a) the person has relevant knowledge of—

(i) the computer or data storage device or a computer network of which the computer or data



91

storage device forms or formed a part; or

(ii) measures applied to protect data held in, or accessible from, the computer or data storage device; and

(b) the person is informed by a police officer—

(i) of the order made under this section and of its terms; and

(ii) that it is an indictable offence punishable by imprisonment to fail to comply with the order; and

(c) the person fails to comply with the order without reasonable excuse.

(10) A person who commits an offence against subsection (9) is liable to level 6 imprisonment (5 years maximum).

(11) In this section access, data, data held in a computer and data storage device have the meanings given by section 247A(1).".


After section 621 of the Crimes Act 1958 insert—

"621A Transitional provision—Justice Legislation Amendment (Confiscation and Other Matters) Bill 2014

Section 465AA applies with respect to a warrant issued under section 465 irrespective of whether the warrant was issued before, on or after the commencement of section 69 of the Justice Legislation Amendment (Confiscation and Other Matters) Act 2014.".



92

Division 5—Statute law revision

71 Statute law revision

In section 10A(2)(d) of the Sentencing Act 1991, for "hospital security order" substitute "Court Secure Treatment Order".

__________________



93

PART 11—REPEAL

72 Repeal of amending Act

This Act is repealed on 1 July 2016.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

═══════════════



94

ENDNOTES

Endnotes


95

† Minister's second reading speech—

Legislative Assembly: 20 August 2014

Legislative Council: 17 September 2014

The long title for the Bill for this Act was "A Bill for an Act to amend the Confiscation Act 1997, the Criminal Organisations Control and Other Acts Amendment Act 2014, the Judicial Proceedings Reports Act 1958, the Juries Act 2000, the Personal Safety Intervention Orders Act 2010, the Road Safety Camera Commissioner Act 2011, the Sentencing Act 1991, the Summary Offences Act 1966 and other Acts and for other purposes."

Documents

Justice Legislation Amendment (Confiscation and Other …FILE/14-079a.docx · Web view2014-10-21 · Justice Legislation Amendment (Confiscation and Other ... Part 2—Amendment