Confiscation Amendment Regulations 2012
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Authorised Version
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Confiscation Amendment Regulations 2012
S.R. No. 20/2012
TABLE OF PROVISIONS
Regulation Page
1 Objectives 1
2 Authorising provision 1
3 Commencement 1
4 Principal Regulations 2
5 Objectives amended 2
6 Regulation 6 heading amended 2
7 New regulation 9A inserted 2
9A Notice requiring declaration of property interests—
civil forfeiture restraining order 2
8 Law enforcement agency 2
9 Application for restraining order 3
10 Further orders—restraining order 3
11 New regulations 33A to 33C inserted 3
33A Application for civil forfeiture restraining order 3
33B Further orders—civil forfeiture restraining order 4
33C Particulars of civil forfeiture restraining order to be
recorded on register 4
12 Application for civil forfeiture 4
13 Effect of forfeiture 5
14 Power to discharge mortgage or charge 5
15 Disposal of forfeited property 5
16 Application to Minister for return of property 5
17 Buying back interest in forfeited property 6
18 Buying out other interests in forfeited property 6
19 Revocation of regulation 41 of the Principal Regulations 6
20 Assessment of benefits in relation to civil forfeiture offences 6
21 Declaration that property available to satisfy pecuniary
penalty order 7
22 Particulars of declaration under section 70(1) to be recorded
on register 7
23 Disposal of property obtained to satisfy pecuniary penalty
order 7
24 Trustees 7
25 Disposal of livestock or perishable property 8
26 Return of property seized under a warrant 8
27 Application for search and inspection warrant 8
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28 Application for search and seizure warrant 8
29 Order for examination 9
30 Monitoring order 9
31 Information notice 9
32 New regulation 54A inserted 9
54A Document request 9
33 Registration of interstate orders 10
34 New regulation 55A inserted 10
55A Reports to the Minister 10
35 Appeals 10
36 Delegation 11
37 Schedule 1 substituted 11
SCHEDULE 1—Notice Requiring Declaration of
Property Interests—Restraining Order 11
38 Schedule 2 amended 14
39 Schedule 3 amended 15
40 Schedule 4 amended 15
41 New Schedule 4A inserted 15
SCHEDULE 4A—Notice Requiring Declaration of
Property Interests—Civil Forfeiture
Restraining Order 15
42 Schedule 18 amended 19
43 Schedule 19 substituted 20
SCHEDULE 19—Document Request 20
═══════════════
ENDNOTES 23
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STATUTORY RULES 2012
S.R. No. 20/2012
Confiscation Act 1997
Confiscation Amendment Regulations 2012
The Governor in Council makes the following Regulations:
Dated: 20 March 2012
Responsible Minister:
ROBERT CLARK
Attorney-General
MATTHEW McBEATH
Clerk of the Executive Council
1 Objectives
The objectives of these Regulations are to amend
the Confiscation Regulations 2008—
(a) as a consequence of changes to powers and
procedures under the Confiscation Act
1997; and
(b) to reflect a structural change in the
Department of Justice; and
(c) to make other miscellaneous amendments.
2 Authorising provision
These Regulations are made under section 146 of
the Confiscation Act 1997.
3 Commencement
These Regulations come into operation on 1 April
2012.
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4 Principal Regulations
In these Regulations, the Confiscation Regulations
20081 are called the Principal Regulations.
5 Objectives amended
In regulation 1(c) of the Principal Regulations
after "restraining order" insert "and a civil
forfeiture restraining order".
6 Regulation 6 heading amended
In the heading to regulation 6 of the Principal
Regulations, after "interests" insert
"—restraining order".
7 New regulation 9A inserted
After regulation 9 of the Principal Regulations
insert—
"9A Notice requiring declaration of property
interests—civil forfeiture restraining
order
The prescribed form of a notice requiring a
declaration of property interests under
section 36O of the Act is the form set out in
Schedule 4A.".
8 Law enforcement agency
For regulation 30(1)(a) of the Principal
Regulations substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
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9 Application for restraining order
For regulation 31(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
10 Further orders—restraining order
For regulation 32(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
11 New regulations 33A to 33C inserted
After regulation 33 of the Principal Regulations
insert—
"33A Application for civil forfeiture restraining
order
For the purposes of section 36K(1) of the
Act, the following persons are prescribed—
(a) the Director, Infringement Management
and Enforcement Services;
(b) the Director, Enforcement Services,
Infringement Management and
Enforcement Services;
(c) the Assistant Director, Asset
Confiscation Operations, Infringement
Management and Enforcement
Services.
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33B Further orders—civil forfeiture
restraining order
For the purposes of section 36W(3)(d) of the
Act, the following persons are prescribed—
(a) the Director, Infringement Management
and Enforcement Services;
(b) the Director, Enforcement Services,
Infringement Management and
Enforcement Services;
(c) the Assistant Director, Asset
Confiscation Operations, Infringement
Management and Enforcement
Services.
33C Particulars of civil forfeiture restraining
order to be recorded on register
The prescribed particulars to be recorded
under section 36Y(1) of the Act are—
(a) the name of the applicant;
(b) the name of the court by which the
order was made;
(c) the date of the order;
(d) a description of the affected property
that is sufficient to identify it.".
12 Application for civil forfeiture
For regulation 34(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
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13 Effect of forfeiture
For regulation 35(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
14 Power to discharge mortgage or charge
For regulation 36(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
15 Disposal of forfeited property
For regulation 37(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
16 Application to Minister for return of property
For regulation 38(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
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17 Buying back interest in forfeited property
For regulation 39(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
18 Buying out other interests in forfeited property
For regulation 40(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
19 Revocation of regulation 41 of the Principal
Regulations
Regulation 41 of the Principal Regulations is
revoked.
20 Assessment of benefits in relation to civil forfeiture
offences
(1) In the heading to regulation 42 of the Principal
Regulations, for "civil forfeiture offences"
substitute "Schedule 2 offences".
(2) For regulation 42(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
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21 Declaration that property available to satisfy
pecuniary penalty order
For regulation 43(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
22 Particulars of declaration under section 70(1) to be
recorded on register
In regulation 44(e) of the Principal Regulations,
for "defendant" substitute "accused".
23 Disposal of property obtained to satisfy pecuniary
penalty order
For regulation 45(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
24 Trustees
For regulation 46(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
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25 Disposal of livestock or perishable property
For regulation 48(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
26 Return of property seized under a warrant
For regulation 49(1)(a), (2)(a) and (3)(a) of the
Principal Regulations substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
27 Application for search and inspection warrant
For regulation 50(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
28 Application for search and seizure warrant
For regulation 51(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
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29 Order for examination
For regulation 52(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
30 Monitoring order
For regulation 53(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
31 Information notice
For regulation 54(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
32 New regulation 54A inserted
After regulation 54 of the Principal Regulations
insert—
"54A Document request
For the purposes of section 120A(2) of the
Act, the following persons are prescribed—
(a) the Director, Infringement Management
and Enforcement Services;
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(b) the Director, Enforcement Services,
Infringement Management and
Enforcement Services;
(c) the Assistant Director, Asset
Confiscation Operations, Infringement
Management and Enforcement
Services.".
33 Registration of interstate orders
For regulation 55(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
34 New regulation 55A inserted
After regulation 55 of the Principal Regulations
insert—
"55A Reports to the Minister
For the purposes of section 139A(2) of the
Act, Infringement Management and
Enforcement Services is prescribed as a law
enforcement agency.".
35 Appeals
For regulation 56(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
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36 Delegation
For regulation 57(a) of the Principal Regulations
substitute—
"(a) the Director, Infringement Management and
Enforcement Services;
(ab) the Director, Enforcement Services,
Infringement Management and Enforcement
Services;".
37 Schedule 1 substituted
For Schedule 1 to the Principal Regulations
substitute—
"SCHEDULE 1
Regulation 6
NOTICE REQUIRING DECLARATION OF
PROPERTY INTERESTS—RESTRAINING ORDER
Section 19A
IMPORTANT: DO NOT IGNORE THIS DOCUMENT
As soon as you get this notice you should get legal advice to
help you understand the notice and your obligations under
the notice. Contact your lawyer or a community legal centre
for advice.
(Information to the effect of the above advice to be printed
in the English, Arabic, Cambodian, Chinese, Croatian,
Greek, Italian, Macedonian, Polish, Serbian, Spanish,
Turkish and Vietnamese languages.)
To: (insert name and address)
WHY YOU HAVE RECEIVED THIS NOTICE
A court has made a restraining order in respect of certain
property under the Confiscation Act 1997. A copy of the
restraining order should be attached to this notice.
The restraining order describes the property that has been
restrained.
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You have received this notice because the person who
applied for the restraining order believes that you have an
interest in some or all of the property described in the
restraining order.
WHAT YOU MUST DO
You must make a declaration in writing. You may use
the attached form to make your declaration.
The declaration must state—
• whether or not you have an interest in the property
described in the restraining order; and
• whether or not you believe that any other person
has an interest in the property described in the
restraining order.
An interest in property is defined in section 3(1) of the
Confiscation Act 1997 as meaning a legal or equitable
estate or interest in the property, or a right, power or
privilege over, or in connection with, the property.
If you have an interest in the property, you must also state
in the declaration the nature and extent of that interest,
including—
• in relation to a mortgage, the current value of the
debt secured by the mortgage; and
• in relation to any security interest other than a
mortgage, the current value of the debt secured by
the interest in the property.
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. 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.
If you believe that any other person has an interest in the
property described in the restraining order, you must state to
the best of your knowledge the name and address of every
such person in the declaration.
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You must give the declaration to a member of the police
force within 14 days after you were given this notice.
Address for delivery of
declaration:
WARNING
If you fail, without reasonable excuse, to make a declaration
and give the declaration to a member of the police force
within 14 days, you may be charged with a criminal offence
and prosecuted under section 19C(1) of the Confiscation
Act 1997.
If you make a false or misleading statement in your
declaration, you may be charged and prosecuted under
section 19C(2) of the Confiscation Act 1997.
If you are found guilty of either of these offences, you may
be liable to a maximum penalty of 60 penalty units.
A statement made by you in a declaration of property
interests, and any information, document or thing obtained
as a consequence of such a statement, is admissible against
you in a proceeding for making a false or misleading
statement in the declaration or in any proceeding under the
Confiscation Act 1997, but is not otherwise admissible in
evidence against you.
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ATTACHED FORM OF DECLARATION OF
PROPERTY INTERESTS
I (insert full name)
of (address)
declare that—
I have an interest as stated below in property
described in the restraining order which I have
been given; or
I do not have an interest in property described in
the restraining order which I have been given;
and
I believe that another person as stated below has
an interest in the property described in the
restraining order which I have been given; or
I do not believe that any other person has an
interest in the property described in the restraining
order which I have been given.
Nature and extent of my interest in the restrained
property—
(insert statement of nature and extent of interest)
To the best of my knowledge the name and address of
person(s) with an interest in restrained property are—
(insert name(s) and address(es))
Signature Signature of witness*
Date *Declaration may be
witnessed by any adult.
__________________".
38 Schedule 2 amended
In Schedule 2 to the Principal Regulations, for
"72 hours" (where twice occurring) substitute
"3 business days".
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39 Schedule 3 amended
In Schedule 3 to the Principal Regulations, for
"72 hours" substitute "3 business days".
40 Schedule 4 amended
In Schedule 4 to the Principal Regulations, for
"72 hours" substitute "3 business days".
41 New Schedule 4A inserted
After Schedule 4 to the Principal Regulations
insert—
"SCHEDULE 4A
Regulation 9A
NOTICE REQUIRING DECLARATION OF
PROPERTY INTERESTS—CIVIL FORFEITURE
RESTRAINING ORDER
Section 36O
IMPORTANT: DO NOT IGNORE THIS DOCUMENT
As soon as you get this notice you should get legal advice to
help you understand the notice and your obligations under
the notice. Contact your lawyer or a community legal centre
for advice.
(Information to the effect of the above advice to be printed
in the English, Arabic, Cambodian, Chinese, Croatian,
Greek, Italian, Macedonian, Polish, Serbian, Spanish,
Turkish and Vietnamese languages.)
To: (insert name and address)
WHY YOU HAVE RECEIVED THIS NOTICE
A court has made a civil forfeiture restraining order in
respect of certain property under the Confiscation Act
1997. A copy of the civil forfeiture restraining order should
be attached to this notice. The civil forfeiture restraining
order describes the property that has been restrained.
You have received this notice because the person who
applied for the civil forfeiture restraining order believes that
you have an interest in some or all of the property described
in the civil forfeiture restraining order.
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WHAT YOU MUST DO
You must make a declaration in writing. You may use
the attached form to make your declaration.
The declaration must state—
• whether or not you have an interest in the property
described in the civil forfeiture restraining order;
and
• whether or not you believe that any other person
has an interest in the property described in the
civil forfeiture restraining order.
An interest in property is defined in section 3(1) of the
Confiscation Act 1997 as meaning a legal or equitable
estate or interest in the property, or a right, power or
privilege over, or in connection with, the property.
If you have an interest in the property, you must also state in
the declaration the nature and extent of that interest,
including—
• in relation to a mortgage, the current value of the
debt secured by the mortgage; and
• in relation to any security interest other than a
mortgage, the current value of the debt secured by
the interest in the property.
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. 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.
If you believe that any other person has an interest in the
property described in the civil forfeiture restraining order,
you must state to the best of your knowledge the name and
address of every such person in the declaration.
You must give the declaration to a member of the police
force within 14 days after you were given this notice.
Address for delivery of
declaration:
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WARNING
If you fail, without reasonable excuse, to make a declaration
and give the declaration to a member of the police force
within 14 days, you may be charged with a criminal offence
and prosecuted under section 36R(1) of the Confiscation
Act 1997.
If you make a false or misleading statement in your
declaration, you may be charged and prosecuted under
section 36R(3) of the Confiscation Act 1997.
If you are found guilty of either of these offences, you may
be liable to a maximum penalty of 60 penalty units.
A statement made by you in a declaration of property
interests, and any information, document or thing obtained
as a consequence of such a statement, is admissible against
you in a proceeding for making a false or misleading
statement in the declaration or in any proceeding under the
Confiscation Act 1997, but is not otherwise admissible in
evidence against you.
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ATTACHED FORM OF DECLARATION OF
PROPERTY INTERESTS
I (insert full name)
of (address)
declare that—
I have an interest as stated below in property
described in the civil forfeiture restraining order
which I have been given; or
I do not have an interest in property described in
the civil forfeiture restraining order which I have
been given;
and
I believe that another person as stated below has
an interest in the property described in the civil
forfeiture restraining order which I have been
given; or
I do not believe that any other person has an
interest in the property described in the civil
forfeiture restraining order which I have been
given.
Nature and extent of my interest in the restrained
property—
(insert statement of nature and extent of interest)
To the best of my knowledge the name and address of
person(s) with an interest in the restrained property are—
(insert name(s) and address(es))
Signature Signature of witness*
Date *Declaration may be
witnessed by any adult.
__________________".
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42 Schedule 18 amended
(1) In Schedule 18 to the Principal Regulations, for—
" whether an account is held in the name(s) specified
below, and if so, the number and balance of that
account
the name(s) in which the account specified below is
held and the balance of the account"
substitute—
" whether an account is held in the name(s) specified
below, and if so, the number and balance of that
account and the account type
the name(s) in which the account specified below is
held, the balance of the account and the account
type".
(2) In Schedule 18 to the Principal Regulations,
after—
"Name/number of account
"
insert—
"Property details
".
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*You have been issued this information notice
because the following property is believed to be
subject to a mortgage or other security interest in
your favour:
(insert details of property)
You are only required to provide the information
indicated above in respect of an account that relates
to the mortgage or other security interest secured
by the above property.
*Name(s) in which account held
*Account number
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(3) In Schedule 18 to the Principal Regulations, for—
"*Delete whichever is inapplicable."
substitute—
"*Delete words which are inapplicable.".
43 Schedule 19 substituted
For Schedule 19 to the Principal Regulations
substitute—
"SCHEDULE 19
Regulation 24
DOCUMENT REQUEST
Section 120B
IMPORTANT: DO NOT IGNORE THIS DOCUMENT
As soon as you get this notice you should get legal advice to
help you understand the notice and your obligations under
the notice. Contact your lawyer or a community legal centre
for advice.
(Information to the effect of the above advice to be printed
in the English, Arabic, Cambodian, Chinese, Croatian,
Greek, Italian, Macedonian, Polish, Serbian, Spanish,
Turkish and Vietnamese languages.)
To: (Name and address)
This document request is given to you under—
*section 120A(1) of the Confiscation Act 1997 by the
Secretary to the Department of Justice, Victoria.
*section 120A(2) of the Confiscation Act 1997 by—
Name
Address
being a prescribed person for the purposes of that section.
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You have received this document request because the
*Secretary/*prescribed person named above believes that
you have possession or control of documents relating to the
maintenance and management of the property described
below.
*The Secretary has responsibility for this property under a
memorandum of understanding entered into under
section 78A of the Confiscation Act 1997.
Description of property
WHAT YOU MUST DO
You are requested to produce the documents or types of
documents specified below to the person who has given you
this document request.
Documents requested
The documents are sought for the maintenance and
management of the property by or on behalf of the
*Secretary/*prescribed person. The documents will be
provided to such *delegates or agents of the
Secretary/*agents of the prescribed person as required for
the purposes of the maintenance and management of the
property.
You are required to comply with this request within 14 days
after the day on which the document request is given to you.
Address for delivery
of documents:
A document that you produce to the person who has given
you this document request must be returned to you within
7 days after you produce it. If the person who has given you
this document request believes on reasonable grounds that it
is necessary for the purposes of the Confiscation Act 1997
to retain the document for more than 7 days, that person
must give you a copy of the document certified in writing
to be a true copy of the document (section 120E of the
Confiscation Act 1997).
*Delete words which are not applicable
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WARNING
It is an offence for a person who is given a document
request to fail, without reasonable excuse, to comply with
the request within 14 days after the day on which the request
is given (section 120C(1) of the Confiscation Act 1997).
It is also an offence for a person who is given a document
request to provide any document that is false or misleading
in a material particular (section 120C(2) of the Confiscation
Act 1997).
The maximum penalty for these offences is a fine of
60 penalty units.".
═══════════════
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ENDNOTES
1 Reg. 4: S.R. No. 57/2008.
Endnotes
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