Justice Legislation Amendment (Confiscation and Other Matters) Act 2014

Justice Legislation Amendment (Confiscation and Other Matters) Act 2014

No. 79 of 2014

table of provisions

SectionPage

Part 1—Preliminary

1Purpose

2Commencement

Part 2—Amendment of Confiscation Act 1997

Division 1—Unexplained wealth

3Amendment of purposes

4Definitions

5Amendment of objects

6Meaning of derived property—civil forfeiture

7New section 7C inserted

7CMeaning of serious criminal activity

8Jurisdiction

9Heading to Part 2 amended

10New section 15A substituted

15AProperty may be subject to both restraining order and other orders

11Application for restraining order

12Application for freezing order

13Making of freezing order

14New section 36J substituted

36JProperty may be subject to both civil forfeiture restraining order and other orders

15Application for civil forfeiture restraining order

16New Part 4A inserted

Part 4A—Unexplained Wealth

Division 1—Unexplained wealth restraining orders

40CUnexplained wealth restraining orders

40DPurpose for which an unexplained wealth restraining order may be made

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

40FApplication for unexplained wealth restraining order

40GProperty lawfully acquired

40HProcedure on application for unexplained wealth restraining order

40IDetermination of application for unexplained wealth restraining order

40JNotice of unexplained wealth restraining order to be given to persons affected

40KNotice requiring declaration of interests in restrained property

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

40MNotice to person suspected of engaging in serious criminal activity

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

40OOffences

40PCourt directions to provide information

40QAdmissibility of statement

40RApplication for exclusion from unexplained wealth restraining order

40SDetermination of application for exclusion from unexplained wealth restraining order

40TEvidentiary requirements for exclusion order

40UApplication for substitution order

40VDetermination of application for substitution order

40WFurther orders

40XSetting aside of unexplained wealth restraining order

40YRegistration of unexplained wealth restraining order

40ZContravention of unexplained wealth restraining order

Division 2—Forfeiture of unexplained wealth

40ZAForfeiture of unexplained wealth

40ZBDeclaration that property has been forfeited

40ZCApplication for exclusion from unexplained wealth forfeiture

40ZDDetermination of application for exclusion from unexplained wealth forfeiture

17Effect of forfeiture

18Power to discharge mortgage or charge

19Court may give directions

20Disposal of forfeited property

21New section 45B inserted

45BRelief from unexplained wealth forfeiture

22New section 48A inserted

48ADischarge of unexplained wealth forfeiture in respect of an interest

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

24Amendment of sections 56 and 57

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

26Provisions concerning the trustee

27Memorandum of understanding

28Application for search and inspection warrant

29Search and inspection warrant

30Order for examination

31Heading to section 100 inserted

32New section 100A inserted

100AApplication for production order—unexplained wealth

33Production orders

34Application for monitoring order

35Issuing information notices—authorised police officer

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

37Interstate orders and search warrants

38Costs

39Amendment of section 135

40Reports to the Minister

41Provision of legal aid

42New section 189 inserted

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

Division 2—Equitable sharing program

43Crime Prevention and Victims' Aid Fund

44New sections 134A and 134B inserted

134APayment of money realised into Consolidated Fund

134BPayment to other jurisdictions under equitable sharing program

Division 3—Other amendments to Confiscation Act 1997

45Application for exclusion from restraining order

46Determination of exclusion application—restraining order—automatic forfeiture

47Contravention of civil forfeiture restraining order

Part 3—Amendment of Criminal Organisations Control and Other Acts Amendment Act 2014

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

38ZAAAppeal against unconditional release

Part 4—Amendment of Judicial Proceedings Reports Act 1958

49Prohibition of reporting of names

Part 5—Amendment of Juries Act 2000

50Crown right to stand aside jurors in criminal trials

51Schedule 6 amended

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

Part 6—Amendment of Personal Safety Intervention Orders Act 2010

52Definition

53New section 25A inserted

25ADispute Settlement Centre of Victoria may request mediation information

Part 7—Amendment of Road Safety Camera Commissioner Act 2011

54Functions

Part 8—Amendment of Sentencing Act 1991

55Period and commencement of a community correction order

56New section 41A inserted

41AMaximum cumulative community correction orders imposable by Magistrates' Court

57Imprisonment and a community correction order

58New section 156 inserted

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

Part 9—Amendment of Summary Offences Act 1966

59New section 51A inserted

51AAssaulting registered health practitioners

60Consequential amendment—Private Health Care Facilities Act 2014

Part 10—Amendment of Other Acts

Division 1—Complicity

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

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

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

64Amendment of the Sentencing Act 1991

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

65Definition

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

66Section 2 substituted

2Commencement

67Amendment of section 4—new section 10AA

68New Division 4 of Part 2 inserted

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

10AConsequential amendment—Private Health Care Facilities Act 2014

Division 4—Amendment of Crimes Act 1958

69New section 465AA inserted

465AAPower to require assistance from person with knowledge of a computer or computer network

70New section 621A inserted

621ATransitional provision—Justice Legislation Amendment (Confiscation and Other Matters) Bill 2014

Division 5—Statute law revision

71Statute law revision

Part 11—Repeal

72Repeal of amending Act

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Endnotes

SectionPage

Victoria

SectionPage

Justice Legislation Amendment (Confiscation and Other Matters) Act 2014[†]

No. 79 of 2014

[Assented to 21 October 2014]

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

The Parliament of Victoriaenacts:

Part 11—Repeal

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

Part 1—Preliminary

1Purpose

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

(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

s. 1

(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 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.

2Commencement

(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.

s. 2

(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

(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.

s. 2

(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.

______

Part 2—Amendment of Confiscation Act 1997

Division 1—Unexplained wealth

3Amendment of purposes

See:
Act No.
108/1997.
Reprint No. 6
as at
1 April 2012
and amending
Act Nos
20/2012, 82/2012, 77/2013, 17/2014 and 37/2014.
LawToday:
www.
legislation.
vic.gov.au

s. 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;".

4Definitions

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";

(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;

s. 4

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;".

5Amendment of objects

s. 5

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.".

6Meaning 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".

7New section 7C inserted

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;

s. 7

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

8Jurisdiction

s. 8

(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.".

(2)After section 12(5) of the Confiscation Act 1997 insert—

"(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.".

9Heading 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".

10New section 15A substituted

For section 15A of the Confiscation Act 1997 substitute—

s. 10

"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 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.".

11Application for restraining order

s. 11

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

12Application 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 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)".

13Making 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.".

14New section 36J substituted

For section 36J of the Confiscation Act 1997 substitute—

s. 14

"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—

s. 14

(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 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.".

15Application for civil forfeiture restraining order

s. 15

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

16New Part 4A inserted

After Part 4 of the Confiscation Act 1997 insert—