Confiscation Amendment Act 2010

i Confiscation Amendment Act 2010 No. 68 of 2010 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purpose 1 2 Commencement 2 3 Principal Act 2 PART 2—MISCELLANEOUS AMENDMENTS 3 4 Definitions 3 5 New section 3A inserted 4 3A Objects 4 6 Jurisdiction 4 7 Application for restraining order 4 8 Declaration of property interests 5 9 New section 19BA inserted 6 19BA Order for deferral of provision of declaration 6 10 Offences 7 11 Court directions to provide information 7 12 Admissibility of statement 7 13 Application for exclusion from restraining order 8 14 Exclusion from restraining orders 9 15 Setting aside of restraining order 9 16 Duration of freezing order 9 17 Heading amended 10 18 Automatic forfeiture 10 19 New Division 3 inserted in Part 3 10 Division 3—Tainted property substitution declaration— automatic forfeiture 10 36A Interpretation 10 36B Application for tainted property substitution declaration 11 36C Notice of application 12 36D Right to appear and give evidence 12 36E Hearing of application 13 36F Determination of application 13 36G Deemed withdrawal of application 14 -- 1 of 93 -- Section Page ii 20 Discharge of pecuniary penalty order 14 21 Insertion of heading 15 22 New section 69A inserted 15 69A Variation of pecuniary penalty order after subsequent forfeiture 15 23 Pecuniary penalty order debt due to Crown 16 24 Examination 16 25 Issuing of information notices by prescribed persons 16 26 What information notice may require 17 27 Contents of information notice 17 28 Reports of suspect transactions 18 29 Document requests 19 30 Costs 20 31 New section 141A inserted 20 141A Arrangements to avoid operation of Act 20 32 Amendment of Schedule 2 23 33 Statute law revision 23 PART 3—CIVIL FORFEITURE AMENDMENTS 24 34 Purposes 24 35 Definitions 24 36 New sections 7A and 7B inserted 27 7A Meaning of derived property—civil forfeiture 27 7B Meaning of derived property—other cases 28 37 Property in which the accused has an interest 29 38 Jurisdiction 29 39 Restraining orders 29 40 Purposes for which a restraining order may be made 29 41 Application for restraining order and determination of application 29 42 Application for exclusion from restraining order 30 43 Determination of exclusion application—restraining order— Schedule 1 offence 30 44 Determination of exclusion application—restraining order— civil forfeiture 30 45 Duration and setting aside of restraining order 30 46 Application for freezing order 30 47 Making of freezing order 31 48 Freezing orders 31 49 Part 4 substituted 32 PART 4—CIVIL FORFEITURE REGIME 32 Division 1—Civil forfeiture restraining orders 32 36H Civil forfeiture restraining orders 32 36I Purpose for which a civil forfeiture restraining order may be made 34 -- 2 of 93 -- Section Page iii 36J Property may be subject to both civil forfeiture restraining order and restraining order 35 36K Application for civil forfeiture restraining order 36 36L Procedure on application for civil forfeiture restraining order 37 36M Determination of application for civil forfeiture restraining order 40 36N Notice of civil forfeiture restraining order to be given to persons affected 40 36O Notice requiring declaration of property interests 41 36P What must be included in a declaration of property interests? 41 36Q Order for deferral of provision of declaration 42 36R Offences 43 36S Court directions to provide information 44 36T Admissibility of statement 45 36U Application for exclusion from civil forfeiture restraining order 46 36V Determination of application for exclusion from civil forfeiture restraining order 49 36W Further orders 53 36X Duration and setting aside of civil forfeiture restraining order 56 36Y Registration of civil forfeiture restraining order 58 36Z Contravention of civil forfeiture restraining order 59 36ZA Priority given to payment of restitution or compensation 59 36ZB State to pay restitution and compensation out of forfeited property etc. 60 Division 2—Civil forfeiture orders 61 37 Application for civil forfeiture order 61 38 Determination of application for civil forfeiture order 64 39 Consent orders 65 40 Forfeiture of property that may be used as evidence in trial 65 Division 3—Orders for exclusion from civil forfeiture orders 66 40A Application for exclusion from civil forfeiture order 66 40B Determination of application for exclusion from civil forfeiture order 69 50 Disposal of forfeited property 72 51 Application for, and determination of, exclusion from civil forfeiture order repealed 72 52 Application to Minister for return of property or payment of value 73 -- 3 of 93 -- Section Page iv 53 Civil pecuniary penalty orders repealed 73 54 Liability under forfeiture or pecuniary penalty order to be satisfied by trustee 73 55 Provisions concerning the trustee 74 56 Memorandum of understanding 74 57 Embargo notice 74 58 Return of seized property 74 59 Search and inspection warrants 74 60 Order for examination 75 61 Communication of information between law enforcement agencies 75 62 Interstate orders and search warrants 75 63 Costs 76 64 Reports to the Minister 76 65 Appeals 76 66 Provision of legal aid 77 PART 4—TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS TO OTHER ACTS AND REPEAL 78 67 Transitional 78 68 New sections 179 and 180 inserted 78 179 Transitional—Confiscation Amendment Act 2010 78 180 Regulations dealing with transitional matters 82 69 New sections 181 to 184 inserted 83 181 Confiscation Amendment Act 2010—proceedings for civil forfeiture generally 83 182 Confiscation Amendment Act 2010—tainted property and derived property 85 183 Confiscation Amendment Act 2010—freezing orders 87 184 Transitional provisions for Confiscation Amendment Act 2010 do not derogate from Interpretation of Legislation Act 1984 87 70 Sentencing Act 1991 88 71 Repeal of amending Act 88 ═══════════════ ENDNOTES 89 -- 4 of 93 -- 1 Confiscation Amendment Act 2010† No. 68 of 2010 [Assented to 12 October 2010] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purpose The purpose of this Act is to amend the Confiscation Act 1997— (a) to clarify and improve the operation of existing powers and processes in the Act; and (b) to reinforce and clarify the preventative and remedial purposes of civil forfeiture powers in the Act. Victoria -- 5 of 93 -- Part 1—Preliminary Confiscation Amendment Act 2010 No. 68 of 2010 2 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 January 2012, it comes into operation on that day. 3 Principal Act In this Act, the Confiscation Act 1997 is called the Principal Act. __________________ s. 2 See: Act No. 108/1997. Reprint No. 5 as at 26 September 2007 and amending Act Nos 12/2008, 34/2008, 52/2009, 68/2009 and 69/2009. LawToday: www. legislation. vic.gov.au -- 6 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 3 PART 2—MISCELLANEOUS AMENDMENTS 4 Definitions (1) In section 3(1) of the Principal Act insert the following definitions— "AUSTRAC CEO means the Chief Executive Officer of the Australian Transaction Reports and Analysis Centre continued in existence by section 209 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth; reporting entity has the same meaning as in the Anti-Money Laundering and Counter- Terrorism Financing Act 2006 of the Commonwealth;". (2) In section 3(1) of the Principal Act insert the following definition— "business day means a day other than a Saturday, a Sunday or a public holiday appointed under the Public Holidays Act 1993;". (3) In section 3(1) of the Principal Act, the definition of Director is repealed. (4) In section 3(1) of the Principal Act, for the definition of document request substitute— "document request means a request for documents made under Division 6 of Part 13;". s. 4 -- 7 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 4 5 New section 3A inserted After section 3 of the Principal Act insert— "3A Objects The main objects of this Act are— (a) to deprive persons of the proceeds of certain offences and of tainted property; and (b) to deter persons from engaging in criminal activity; and (c) to disrupt criminal activity by preventing the use of tainted property in further criminal activity.". 6 Jurisdiction In section 12(8) of the Principal Act, after "any order" insert ", other than an order under section 141A,". 7 Application for restraining order After section 16(5) of the Principal Act insert— "(6) An application under subsection (1) or (2) in relation to property or an interest in property may be made more than once, whether on the same grounds or different grounds, for any purpose referred to in section 15(1). (7) An application under subsection (1) in relation to property or an interest in property does not preclude an application under subsection (2) in relation to the same property or interest in property. (8) An application under subsection (2) in relation to property or an interest in property does not preclude an application under subsection (1) in relation to the same property or interest in property.". s. 5 -- 8 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 5 8 Declaration of property interests (1) After section 19B(1) of the Principal Act insert— "(1A) If the person making the declaration of property interests states that the person has an interest in the 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; (b) in relation to any security interest other than a mortgage, the current value of the debt secured by the interest in the property.". (2) In section 19B(2) of the Principal Act, for "state the name of every such person in the declaration." substitute "state in the declaration to the best of his or her knowledge the name and address of every other person who has an interest in the property.". (3) At the foot of section 19B of the Principal Act insert— "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.". s. 8 -- 9 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 6 9 New section 19BA inserted After section 19B of the Principal Act insert— "19BA Order for deferral of provision of declaration (1) If— (a) a person has been given a notice under section 19A; and (b) the person has been or is charged with the Schedule 1 offence or the Schedule 2 offence in respect of which the property is restrained or any other offence— the person may apply to the court that is to hear the charge for the offence for an order under subsection (2). (2) On an application under subsection (1), if the court is satisfied that the provision of a declaration of property interests by the applicant would be likely to jeopardize the applicant's trial or hearing, the court may order that the applicant may defer providing the declaration of property interests, or a specified part of the declaration, until the charge against the applicant is finally determined or is withdrawn. (3) If the court makes an order under subsection (2), it must specify whether— (a) the applicant is required to provide a declaration containing only the matters referred to in section 19B(1)(b) and (2); or (b) the applicant is not required to provide a declaration in relation to any interests in the property.". s. 9 -- 10 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 7 10 Offences (1) In section 19C(1) of the Principal Act, for "A person" substitute "Subject to subsection (1A), a person". (2) After section 19C(1) of the Principal Act insert— "(1A) If a court makes an order under section 19BA, a person who is given a notice under section 19A must not, without reasonable excuse, fail to give the declaration of property interests required by that notice to a member of the police force— (a) in relation to any part of the declaration not deferred by the order under section 19BA, within 14 days after the notice is given to the person; or (b) in relation to the whole or any part of the declaration deferred by the order under section 19BA, within 14 days after the charge against the person is finally determined or is withdrawn. Penalty: Level 9 fine (60 penalty units maximum).". 11 Court directions to provide information In section 19D(1)(a) of the Principal Act, after "section 19C(1)" insert ", (1A)". 12 Admissibility of statement At the end of section 19E of the Principal Act insert— "(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 19B is admissible against that person in— s. 10 -- 11 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 8 (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.". 13 Application for exclusion from restraining order (1) After section 20(5) of the Principal Act insert— "(5A) If— (a) a court makes a restraining order against property under section 18 in relation to an offence; and (b) a person claiming an interest in the property is charged with the offence or any other 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 proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person.". (2) In section 20 of the Principal Act— (a) in subsection (5)(b) for "or a related offence that is a Schedule 1 offence or a Schedule 2 offence" substitute "or any other offence"; (b) in subsection (6)(a) for "Schedule 2 offence" substitute "Schedule 1 offence or a Schedule 2 offence"; (c) in subsection (6)(b) for "Schedule 2 offence or a related offence that is a Schedule 2 offence" substitute "offence or a related offence". s. 13 -- 12 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 9 14 Exclusion from restraining orders (1) At the end of section 21 of the Principal Act insert— "(2) 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.". (2) In section 22(a)(ii) and (c)(iiia) of the Principal Act, after "property" insert "and is not, or will not be, subject to a tainted property substitution declaration under section 36F". (3) At the end of section 22 of the Principal Act insert— "(2) 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.". 15 Setting aside of restraining order After section 27(8) of the Principal Act insert— "(9) A court that makes a restraining order may make an order setting aside the restraining order if the restraining order is no longer required or appropriate. (10) An order under subsection (9) may be made on the application of the applicant for the restraining order.". 16 Duration of freezing order (1) In section 31H(2)(b) of the Principal Act, for "72 hours after the time" substitute "3 business days after the day". (2) In section 31G(1)(b)(i), (2)(f) and (3) of the Principal Act, for "72 hours" substitute "3 business days". s. 14 -- 13 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 10 17 Heading amended In the heading to Division 1A of Part 3 of the Principal Act, after "declaration" insert "—forfeiture order". 18 Automatic forfeiture (1) In section 35(1) of the Principal Act— (a) in paragraph (c), for "section 22—" substitute "section 22; and"; (b) after paragraph (c) insert— "(ca) the restrained property is not the subject of an application under section 20 that is still pending—". (2) In section 35(2) of the Principal Act, for "If, within the period of 60 days referred to in subsection (1), an application has been made for an exclusion order under section 22 in respect of restrained property" substitute "If an application under section 20 in respect of restrained property is still pending on the expiry of the period of 60 days referred to in subsection (1) or within that period of 60 days such an application is made". 19 New Division 3 inserted in Part 3 After Division 2 of Part 3 of the Principal Act insert— "Division 3—Tainted property substitution declaration—automatic forfeiture 36A Interpretation (1) For the purposes of this Division, property is not available for forfeiture if the accused does not have an interest in the property. s. 17 -- 14 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 11 (2) In this Division— applicant means a person who under section 16(2) may apply for a restraining order in relation to a Schedule 2 offence. 36B Application for tainted property substitution declaration (1) If property is restrained for the purposes of automatic forfeiture and an application under section 20 is made for an exclusion order under section 22, an applicant may apply for a tainted property substitution declaration to— (a) the Supreme Court; or (b) the County Court. (2) An application under subsection (1) must be made within 30 days after service on the applicant of notice of the application under section 20. (3) The court may extend the period within which an application under subsection (1) may be made, whether or not that period has expired, if it is in the interests of justice to do so. (4) An application under subsection (1) must— (a) specify property that the accused used or intended to use in or in connection with the commission or alleged commission of the Schedule 2 offence in relation to which the restraining order was made; and s. 19 -- 15 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 12 (b) specify property which is to be substituted for the property referred to in paragraph (a) that— (i) is property in which the accused had an interest at the time that the Schedule 2 offence was committed, or is alleged to have been committed; and (ii) is of the same nature or description as the property referred to in paragraph (a). 36C Notice of application (1) The applicant must give written notice of an application under section 36B to— (a) the accused, unless the accused has absconded; and (b) the applicant under section 20 for an exclusion order under section 22; and (c) any other person who the applicant has reason to believe has an interest in the restrained property. (2) The court may, at any time before the final determination of the application, require the applicant to give notice of the application to any person, in any manner and within any time that the court thinks fit. 36D Right to appear and give evidence Any person who is given notice under section 36C is entitled to appear and to give evidence at the hearing of the application under section 36B but the absence of a person does not prevent the court from making a tainted property substitution order. s. 19 -- 16 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 13 36E Hearing of application (1) An application under section 36B must not be heard until all charges for Schedule 2 offences against the accused have been finally determined. (2) In subsection (1)— Schedule 2 offence means the Schedule 2 offence in relation to which the restraining order was made or a related offence that is a Schedule 2 offence. 36F Determination of application (1) Subject to subsection (2), a court may make a tainted property substitution declaration if the court is satisfied that— (a) the accused used or intended to use the property which is not available for forfeiture in or in connection with the commission of the Schedule 2 offence of which the accused is convicted; and (b) the property referred to in paragraph (a) is not available for forfeiture; and (c) the property which is to be substituted for the property referred to in paragraph (a)— (i) is property in which the accused had an interest at the time that the Schedule 2 offence was committed; and (ii) is of the same nature or description as the property referred to in paragraph (a). s. 19 -- 17 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 14 (2) The court may make a tainted property substitution declaration whether or not the value of the property which is not available for forfeiture is equal to the value of the property which is to be substituted for that property. (3) A court must not make a tainted property substitution declaration under this Division in respect of any property if, at the time of the commission of the Schedule 2 offence, the accused did not have an interest in the property. (4) If the court makes a tainted property substitution declaration under this Division in respect of property, that property— (a) is substituted for the property which is not available for forfeiture; and (b) is deemed to be tainted property for the purposes of this Act. 36G Deemed withdrawal of application An application under section 36B is deemed to have been withdrawn on the acquittal of the accused of all Schedule 2 offences specified in the application.". 20 Discharge of pecuniary penalty order After section 62(1) of the Principal Act insert— "(1A) Property forfeited to the Minister under this Act must not be taken into account in determining whether a pecuniary penalty order is discharged.". s. 20 -- 18 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 15 21 Insertion of heading Insert the following heading to section 69 of the Principal Act— "Variation of pecuniary penalty order after successful appeal against restitution or compensation order". 22 New section 69A inserted After section 69 of the Principal Act insert— "69A Variation of pecuniary penalty order after subsequent forfeiture (1) If— (a) a court made a pecuniary penalty order under this Part in relation to an offence; and (b) in assessing the value of the benefits derived, the court included or treated as benefits any property that is later forfeited to the Minister under this Act in relation to the same offence— the DPP or the accused may apply to the court which made the pecuniary penalty order for a variation of that order, taking into account the later forfeiture. (2) An applicant under subsection (1) must give written notice of the application to the DPP or the accused, as the case may be. (3) On an application under subsection (1), the court must exclude the forfeited property from the assessment of benefits and vary the pecuniary penalty order accordingly.". s. 21 -- 19 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 16 23 Pecuniary penalty order debt due to Crown In section 74(2) of the Principal Act, after "made by a court" insert "must be taken to be a judgment debt and". 24 Examination After section 99(2) of the Principal Act insert— "(2A) Any information, document or other thing obtained as a direct or indirect consequence of a person making a statement or disclosure in answer to a question put in the course of an examination referred to in section 98(2) is admissible against that person in— (a) any civil proceeding; or (b) a proceeding for giving false testimony in the course of the examination; or (c) any proceeding under this Act— but is not otherwise admissible in evidence against that person.". 25 Issuing of information notices by prescribed persons (1) In section 118E(2) of the Principal Act, after "information notice" (where first occurring) insert "under subsection (1)". (2) After section 118E(2) of the Principal Act insert— "(3) A person prescribed for the purposes of section 118C may issue an information notice to a financial institution for the purposes of— (a) managing specified property in respect of which a restraining order or a civil forfeiture restraining order has been made; or s. 23 -- 20 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 17 (b) managing or disposing of specified property that has been forfeited under this Act. (4) A person prescribed for the purposes of section 118C must not issue an information notice under subsection (3) unless he or she reasonably believes that— (a) the specified property is subject to a mortgage or other security interest in favour of the financial institution; and (b) the issuing of the information notice is required to manage or dispose of the specified property.". 26 What information notice may require (1) In section 118G(1)(a)(ii) of the Principal Act, after "account number" insert ", the type of account". (2) After section 118G(1)(b)(i) of the Principal Act insert— "(ia) the type of account; and". (3) After section 118G(1) of the Principal Act insert— "(1A) An information notice issued under section 118E(3) may require the information referred to in subsection (1) only in respect of an account that relates to the mortgage or other security interest secured by the property specified in the information notice.". 27 Contents of information notice After section 118H(2)(b) of the Principal Act insert— "(ba) if the information notice is issued under section 118E(3), details of the property believed to be subject to a mortgage or other s. 26 -- 21 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 18 security interest in favour of the financial institution; and". 28 Reports of suspect transactions (1) In section 119 of the Principal Act, for "Director" (wherever occurring) substitute "AUSTRAC CEO". (2) In section 119(2) of the Principal Act, after "Commonwealth" insert "or under section 41 of the Anti-Money Laundering and Counter- Terrorism Financing Act 2006 of the Commonwealth". (3) After section 119(6) of the Principal Act insert— "(6A) A reporting entity who communicates information to the AUSTRAC CEO under section 41 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 of the Commonwealth must, if requested to do so by a member of the police force, give any further information that is related, whether directly or indirectly, to the information communicated to the AUSTRAC CEO and is specified in the request to the extent to which the reporting entity has that information.". (4) In section 119(7) of the Principal Act— (a) after "cash dealer" (where first and secondly occurring) insert "or reporting entity"; and (b) after "cash dealer" (where thirdly occurring) insert ", reporting entity"; and (c) for "taken under this section or taken in the mistaken belief" substitute "taken in good faith under this section or taken in good faith in the reasonable belief". s. 28 -- 22 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 19 (5) In section 119(8) of the Principal Act, after "cash dealer" (wherever occurring) insert "or reporting entity". 29 Document requests (1) At the end of section 120A of the Principal Act insert— "(2) A prescribed person may request any person whom the prescribed person believes has possession or control of documents that relate to the maintenance and management of property in respect of which a restraining order or a civil forfeiture restraining order has been made or that has been forfeited under this Act to produce those documents to the prescribed person. (3) A request under subsection (1) or (2) may be made only if the person making the request reasonably believes that production of the documents is necessary for the purpose of maintaining and managing the property.". (2) In section 120B(b) of the Principal Act, after "(b)" insert "in the case of a document request made under section 120A(1),". (3) In section 120D of the Principal Act, after "Secretary" insert "or prescribed person, as the case may be". (4) In section 120E(1) of the Principal Act, after "Secretary" insert "or a prescribed person". (5) In section 120E(2) of the Principal Act, after "Secretary" (wherever occurring) insert "or prescribed person". (6) In section 139A(2)(f) of the Principal Act, after "section 143A" insert "or by prescribed persons under section 120A". s. 29 -- 23 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 20 30 Costs (1) In section 133(2) of the Principal Act, after "civil proceedings" insert "(except in relation to costs)". (2) After section 133A(1) of the Principal Act insert— "(1A) Nothing in subsection (1) affects the power of the court to award costs in any circumstances not referred to in this section.". 31 New section 141A inserted After section 141 of the Principal Act insert— "141A Arrangements to avoid operation of Act (1) In this section— scheme means— (a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceeding; or (b) any plan, proposal, action, course of action or course of conduct. (2) The DPP may apply to the Supreme Court for an order under subsection (6). (3) The DPP must give written notice of the application to the person against whom the order is sought and any other person who the DPP considers has an interest in the property to which the scheme relates. s. 30 -- 24 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 21 (4) At any time before it determines the application, the Supreme Court may direct the DPP to give notice of the application to any person, in the manner and within the time, that the Supreme Court considers appropriate. (5) Any person who is given notice under subsection (4) is entitled to appear and to give evidence at the hearing of the application but the absence of a person does not prevent the Supreme Court from making an order under subsection (6). (6) On an application under subsection (2), if the Supreme Court is satisfied that a person is carrying out, or has carried out a scheme for the purpose of directly or indirectly defeating, avoiding, preventing or impeding the operation of this Act, the Supreme Court may, in order to defeat that purpose, by order— (a) declare the scheme to be void in whole or in part; or (b) vary the operation of the scheme in whole or in part. (7) For the purposes of subsection (6), in determining whether a scheme is being carried out or was carried out for the purpose of directly or indirectly defeating, avoiding, preventing or impeding the operation of this Act, it is irrelevant whether or not that purpose was the only or dominant purpose for the scheme, as long as it was a substantial purpose. s. 31 -- 25 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 22 (8) The Supreme Court may make any additional orders that it considers appropriate in the circumstances for or with respect to any consequential or related matter or for giving effect to any order of the court under this section, including orders relating to— (a) the disposition of property; (b) the payment of money; (c) the sale, disposal or other realisation of property and the disposal of the proceeds; (d) the creation of a charge on property in favour of any person and the enforcement of the charge created; (e) the rights of a person who acquired an interest in the property while the scheme was being carried out or afterwards and before the declaration was made. (9) The Supreme Court may rescind or vary an order made under this section. (10) The Supreme Court must ensure that any orders made under subsection (6), (8) or (9)— (a) constitute the minimum interference with a person's rights relating to property, home, family or children that is necessary in the circumstances to defeat the purpose of directly or indirectly defeating, avoiding, preventing or impeding the operation of this Act; and (b) are reasonably related to the objects of this Act set out in section 3A.". s. 31 -- 26 of 93 -- Part 2—Miscellaneous Amendments Confiscation Amendment Act 2010 No. 68 of 2010 23 32 Amendment of Schedule 2 (1) In item 3A of Schedule 2 to the Principal Act, omit the words and expressions commencing "the property dealt with" and ending "8, 9 or 10 and". (2) For item 10 of Schedule 2 to the Principal Act substitute— "10. An offence against section 111A, 111B or 111C of the Fisheries Act 1995 where the quantity of fish in respect of which the offence is committed is not less than 5 times the commercial quantity (within the meaning of that Act).". 33 Statute law revision In section 72(3) of the Principal Act, for "occur" substitute "occurs". __________________ s. 32 -- 27 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 24 PART 3—CIVIL FORFEITURE AMENDMENTS 34 Purposes In section 1(c) of the Principal Act after "provide for the" insert "civil". 35 Definitions (1) In section 3(1) of the Principal Act insert the following definitions— "civil forfeiture exclusion order means— (a) a section 36V exclusion order; or (b) a section 40B exclusion order; civil forfeiture restraining order means an order made under section 36M; section 36V exclusion order means an order made under section 36V excluding property or an interest in property from a civil forfeiture restraining order; section 40B exclusion order means an order made under section 40B excluding property or an interest in property from a civil forfeiture order;". (2) In section 3(1) of the Principal Act— (a) for the definition of civil forfeiture substitute— "civil forfeiture means forfeiture under, or in accordance with, Part 4;". (b) for the definition of civil forfeiture order substitute— "civil forfeiture order means an order for forfeiture made under Division 2 of Part 4;". s. 34 -- 28 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 25 (3) In section 3(1) of the Principal Act— (a) in the definition of exclusion order— (i) omit "24,"; (ii) for ", 52(1) or 54(1)" substitute "or 52(1), but does not include a civil forfeiture exclusion order"; (b) in paragraph (ba)(i) of the definition of law enforcement agency after "restraining order" insert "or a civil forfeiture restraining order"; (c) in the definition of restrained property after "restraining order" insert "or a civil forfeiture restraining order". (4) In section 3(1) of the Principal Act, for the definition of derived property substitute— "derived property— (a) in relation to civil forfeiture, a civil forfeiture restraining order, a civil forfeiture order or a civil forfeiture exclusion order, has the meaning given in section 7A; and (b) in any other case, has the meaning given in section 7B;". (5) In section 3(1) of the Principal Act, for the definition of tainted property substitute— "tainted property, in relation to an offence, means— (a) in the case of civil forfeiture, a civil forfeiture restraining order, a civil forfeiture order or a civil forfeiture exclusion order, property that— s. 35 -- 29 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 26 (i) was used, or was intended to be used in, or in connection with, the commission of the Schedule 2 offence; or (ii) was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i); or (iii) was derived or realised, or substantially derived or realised, directly or indirectly, from the commission of the Schedule 2 offence; or (iv) is likely to be used, or intended to be used in, or in connection with, the future commission of the Schedule 2 offence; or (b) in any other case, property that— (i) was used, or was intended by the accused to be used in, or in connection with, the commission of the offence; or (ii) was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to in subparagraph (i); or (iii) was derived or realised, or substantially derived or realised, directly or indirectly, by any person from the commission of the offence; or s. 35 -- 30 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 27 (c) in a case specified in either paragraph (a) or paragraph (b), property that— (i) in the case of an offence against section 194 of the Crimes Act 1958, is proceeds of crime within the meaning of section 193 of that Act; or (ii) in the case of an offence against section 195 of the Crimes Act 1958, is referred to in that section; or (iii) in the case of an offence against section 195A of the Crimes Act 1958, becomes an instrument of crime within the meaning of section 193 of that Act;". (6) In section 3(1) of the Principal Act, in paragraph (b) of the definition of gift after "accused" insert "or, in relation to civil forfeiture, the transferor of the property". 36 New sections 7A and 7B inserted After section 7 of the Principal Act insert— "7A Meaning of derived property—civil forfeiture In relation to civil forfeiture, a civil forfeiture restraining order, a civil forfeiture order or a civil forfeiture exclusion order, derived property means— (a) property used in, or in connection with, any unlawful activity; or (b) property derived or realised, or substantially derived or realised, directly or indirectly, from any unlawful activity; or s. 36 -- 31 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 28 (c) property derived or realised, or substantially derived or realised, directly or indirectly, from property of a kind referred to in paragraph (a) or (b). Note Property is defined as including any interest in property. See definition in section 3. 7B Meaning of derived property—other cases In any case other than that referred to in section 7A, derived property means— (a) property used in, or in connection with, any unlawful activity by— (i) the accused; or (ii) the applicant for an exclusion order; or (b) property derived or realised, or substantially derived or realised, directly or indirectly, from any unlawful activity by— (i) the accused; or (ii) the applicant for an exclusion order; or (c) property derived or realised, or substantially derived or realised, directly or indirectly, from property of a kind referred to in paragraph (a) or (b). Note Property is defined as including any interest in property. See definition in section 3.". s. 36 -- 32 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 29 37 Property in which the accused has an interest In section 10(b)(ii) of the Principal Act omit "or civil forfeiture". 38 Jurisdiction (1) In section 12(8) of the Principal Act omit "(except an order under Division 2 of Part 8)". (2) After section 12(8) of the Principal Act insert— "(9) The Magistrates' Court and the Children's Court do not have jurisdiction to make a civil forfeiture restraining order, a civil forfeiture exclusion order or a civil forfeiture order.". 39 Restraining orders In the heading to Part 2 of the Principal Act after "ORDERS" insert "OTHER THAN CIVIL FORFEITURE RESTRAINING ORDERS". 40 Purposes for which a restraining order may be made (1) Section 15(1)(c) of the Principal Act is repealed. (2) Section 15(4) of the Principal Act is repealed. 41 Application for restraining order and determination of application (1) Section 16(2)(a) and (2A) of the Principal Act are repealed. (2) For section 16(5) of the Principal Act substitute— "(5) An application for a civil forfeiture restraining order in relation to property or an interest in property does not preclude an application under this section in relation to the same property or interest in property.". (3) Section 18(2) of the Principal Act is repealed. s. 37 -- 33 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 30 42 Application for exclusion from restraining order In section 20 of the Principal Act for "21, 22 or 24" (wherever occurring) substitute "21 or 22". 43 Determination of exclusion application—restraining order—Schedule 1 offence In section 21 of the Principal Act for "paragraph (b) or (c) of section 15(1)" substitute "section 15(1)(b)". 44 Determination of exclusion application—restraining order—civil forfeiture Section 24 of the Principal Act is repealed. 45 Duration and setting aside of restraining order (1) Section 27(2) of the Principal Act is repealed. (2) In section 27(4) of the Principal Act omit "or a civil forfeiture order". 46 Application for freezing order (1) After section 31D(1) of the Principal Act insert— "(1A) An authorised member of the police force may apply to the Magistrates' Court for a freezing order if the applicant suspects on reasonable grounds that— (a) the relevant account contains money which is tainted property in relation to a Schedule 2 offence; and (b) an application for a civil forfeiture restraining order is likely to be made in respect of property which is money in the account.". (2) In section 31D(2) of the Principal Act after "subsection (1)" insert "or (1A)". s. 42 -- 34 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 31 47 Making of freezing order (1) In section 31F(1) of the Principal Act after "31D" insert "(1)". (2) After section 31F(1) of the Principal Act insert— "(1A) On an application under section 31D(1A), 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(1A)(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.". 48 Freezing orders (1) In section 31H(2)(a) of the Principal Act after "restraining order" insert "or a civil forfeiture restraining order". s. 47 -- 35 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 32 (2) In section 31I of the Principal Act— (a) in subsection (2)(b)(i) after "restraining order" insert "or a civil forfeiture restraining order"; (b) in subsection (2)(b)(ii) after "restraining order" insert "or the civil forfeiture restraining order"; (c) in subsection (3)(b) after "restraining order" (where twice occurring) insert "or a civil forfeiture restraining order"; (d) in subsection (5) for ", a restraining order is not" substitute "or a civil forfeiture restraining order, a restraining order or a civil forfeiture restraining order, as the case requires, is not"; (e) in subsection (6) after "restraining order" insert "or the civil forfeiture restraining order, as the case requires,"; (f) in subsection (7) after "restraining order" (where twice occurring) insert "or a civil forfeiture restraining order". 49 Part 4 substituted For Part 4 of the Principal Act substitute— "PART 4—CIVIL FORFEITURE REGIME Division 1—Civil forfeiture restraining orders 36H Civil forfeiture restraining orders (1) A civil forfeiture 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 s. 49 -- 36 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 33 manner and circumstances (if any) specified in the order. (2) If a provision of this Act confers a power to apply for a civil forfeiture 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 Supreme Court or the County Court, when making a civil forfeiture 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) A civil forfeiture 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 s. 49 -- 37 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 34 (b) reasonable business expenses— of any person to whose property the order applies if the Supreme Court or County Court, as the case requires, that makes or made the order is satisfied that these expenses cannot be met from unrestrained property or income of the person. (5) The Supreme Court or the County Court, in making a civil forfeiture 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), a civil forfeiture restraining order may be made subject to any conditions that the court making the order thinks fit. (7) The Supreme Court or the County Court, as the case requires, may refuse to make a civil forfeiture 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. 36I Purpose for which a civil forfeiture restraining order may be made (1) A civil forfeiture 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 any civil forfeiture order that may be made under Division 2. (2) If the Supreme Court or the County Court makes a civil forfeiture restraining order in respect of property or an interest in property, s. 49 -- 38 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 35 the civil forfeiture 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 to satisfy a civil forfeiture order. 36J Property may be subject to both civil forfeiture restraining order and restraining order (1) Property or an interest in property may be subject to both a civil forfeiture restraining order and a restraining order under Part 2. (2) If both a civil forfeiture restraining order and a restraining order under Part 2 made for the purposes of section 15(1)(a) or (b) apply in relation to the same property or interest in property, the civil forfeiture restraining order remains in operation until the earliest of— (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 the Schedule 2 offence; (b) 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; (c) the civil forfeiture restraining order ceasing to operate or being set aside in whole or in part under section 36X; (d) the property or interest in property being excluded from the operation of the civil forfeiture restraining order by a civil forfeiture exclusion order. s. 49 -- 39 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 36 36K Application for civil forfeiture restraining order (1) The DPP or a prescribed person, or a person belonging to a prescribed class of persons, may apply, without notice, to the Supreme Court or the County Court for a civil forfeiture restraining order in respect of property if a member of the police force or a person authorised by or under an Act to prosecute the relevant type of offence suspects on reasonable grounds that the property is tainted property in relation to a Schedule 2 offence. (2) An application under subsection (1) must be supported by an affidavit of a member of the police force or a person authorised by or under an Act to prosecute the relevant type of offence (as the case requires)— (a) setting out any relevant matters; and (b) stating that the member or the person suspects that the property is tainted property in relation to a Schedule 2 offence; and (c) setting out the grounds on which the member or the person has that suspicion. (3) An application for a civil forfeiture restraining order does not need to specify a particular person alleged to have committed the Schedule 2 offence in relation to which the property which is the subject of the application is reasonably suspected of being tainted property. s. 49 -- 40 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 37 (4) An application for a restraining order in relation to property or an interest in property does not preclude an application for a civil forfeiture restraining order being made in relation to the same property or interest in property. (5) An application for a civil forfeiture restraining order may be made more than once. (6) Without limiting the operation of this section, an application for a civil forfeiture restraining order may be made— (a) in relation to different property or a different interest in property in respect of the same Schedule 2 offence; or (b) in relation to the same property or interest in property in respect of a different Schedule 2 offence. 36L Procedure on application for civil forfeiture restraining order (1) On an application under section 36K, if the Supreme Court or the County Court, as the case requires, 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 a civil forfeiture 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. s. 49 -- 41 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 38 (2) In determining whether the circumstances of the case justify the giving of notice, the court must have regard to— (a) the aim of preserving the property that is the subject of the application so as to ensure its availability for the purpose of civil 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 a civil forfeiture restraining order to apply for a section 36V exclusion order to protect that interest from the operation of the civil forfeiture restraining order; and (e) the limited duration of a civil forfeiture 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 a civil forfeiture restraining order, the court may have regard to any other matter that the court considers relevant. s. 49 -- 42 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 39 (4) If the court does not require notice of an application for a civil forfeiture 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. (5) 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 a civil forfeiture restraining order. (6) 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. (7) The court must cause a copy of any order made under subsection (6) to be posted on a door of the court house or in another conspicuous place where notices are usually posted at the court house. (8) A person must not contravene an order posted under subsection (7). Penalty: Imprisonment for 12 months or 1000 penalty units. s. 49 -- 43 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 40 36M Determination of application for civil forfeiture restraining order On an application under section 36K for a civil forfeiture restraining order, the Supreme Court or the County Court, as the case requires, must make a civil forfeiture restraining order if it is satisfied that— (a) the deponent of the affidavit supporting the application does suspect that the property is tainted property in relation to a Schedule 2 offence; and (b) there are reasonable grounds for that suspicion. 36N Notice of civil forfeiture restraining order to be given to persons affected (1) If— (a) a civil forfeiture 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 civil forfeiture restraining order— the applicant must give written notice of the making of the civil forfeiture 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— (a) cause to be published in a newspaper circulating generally in Victoria a notice containing details of the civil forfeiture restraining order; or s. 49 -- 44 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 41 (b) give notice to that person in any other manner that the court directs. Note Section 36H provides that a civil forfeiture restraining order may be made in respect of property or an interest in property. 36O Notice requiring declaration of property interests (1) If a civil forfeiture restraining order is made in respect of property, a member of the police force must give a notice to each person who the applicant for the civil forfeiture restraining order believes has an interest in that property requiring the person to give to the member of the police force a written declaration of property interests. (2) A notice under subsection (1) must— (a) be in the prescribed form; and (b) state the effect of section 36R. 36P What must be included in a declaration of property interests? (1) A person who has been given a notice under section 36O must provide a written declaration of property interests that states whether that person— (a) has an interest in the property; and (b) believes that any other person has an interest in the property. (2) If the person making the declaration of property interests states that the person has an interest in the property, the person must also state in the declaration the nature and extent of that interest, including— s. 49 -- 45 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 42 (a) in relation to a mortgage, the current value of the debt secured by the mortgage; (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 property interests 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. 36Q Order for deferral of provision of declaration (1) If— (a) a person has been given a notice under section 36O; and s. 49 -- 46 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 43 (b) the person has been or is charged with the Schedule 2 offence in respect of which the property is restrained or any other offence— the person may apply to the court that is to hear the charge for the offence for an order under subsection (2). (2) On an application under subsection (1), if the court is satisfied that the provision of a declaration of property interests by the applicant would be likely to jeopardize the applicant's trial or hearing, the court may order that the applicant may defer providing the declaration of property interests, or a specified part of the declaration, until the charge against the applicant is finally determined or is withdrawn. (3) If the court makes an order under subsection (2), it must specify whether— (a) the applicant is required to provide a declaration containing only the matters referred to in section 36P(1)(b) and (3); or (b) the applicant is not required to provide a declaration in relation to any interests in the property. 36R Offences (1) Subject to subsection (2), a person who is given a notice under section 36O must not, without reasonable excuse, fail to give the declaration of property interests required by that notice to a member of the police force within 14 days after the notice is given to the person. Penalty: Level 9 fine (60 penalty units maximum). s. 49 -- 47 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 44 (2) If a court makes an order under section 36Q, a person who is given a notice under section 36O must not, without reasonable excuse, fail to give the declaration of property interests required by that notice to a member of the police force— (a) in relation to any part of the declaration not deferred by the order under section 36Q, within 14 days after the notice is given to the person; or (b) in relation to the whole or any part of the declaration deferred by the order under section 36Q, within 14 days after the charge against the person is finally determined or is withdrawn. Penalty: Level 9 fine (60 penalty units maximum). (3) A person who is given a notice under section 36O must not make a statement in the declaration of property interests required by that notice that is false or misleading in a material particular. Penalty: Level 9 fine (60 penalty units maximum). 36S Court directions to provide information (1) If a person who has been given a notice under section 36O— (a) is convicted of an offence under section 36R(1), (2) or (3); and s. 49 -- 48 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 45 (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 36O— 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 36O— (a) is convicted of the Schedule 2 offence in relation to which the civil forfeiture restraining order was made; 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 36O; 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 36O— 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. 36T Admissibility of statement (1) A statement made by a person in a declaration of property interests given in response to a notice under section 36O is admissible against that person in— s. 49 -- 49 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 46 (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. (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 36O 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. 36U Application for exclusion from civil forfeiture restraining order (1) If the Supreme Court or the County Court makes a civil forfeiture restraining order against property, any person claiming an interest in the property may apply to the Court that made that order for a section 36V exclusion order. (2) An application under subsection (1) must be made— (a) if notice is required to be given under section 36N, within 30 days after service of notice of the making of the civil forfeiture restraining order; or s. 49 -- 50 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 47 (b) in any other case, within 30 days after the making of the civil forfeiture restraining order. (3) 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) An applicant must give notice of the application, and, subject to subsection (9), of the grounds on which it is made— (a) to the applicant for the civil forfeiture restraining order; and (b) to any other person whom the applicant has reason to believe has an interest in the property. (5) Any person referred to in subsection (4) is entitled to appear and to give evidence at the hearing of an application for a section 36V exclusion order but the absence of that person does not prevent the court from making a section 36V exclusion order. (6) If the person referred to in subsection (4)(a) proposes to contest an application for a section 36V exclusion order, that person must give the applicant notice of the grounds on which the application is to be contested. (7) If— (a) a court makes a civil forfeiture restraining order against property in relation to a Schedule 2 offence; and s. 49 -- 51 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 48 (b) a person claiming an interest in the property is charged with the offence or any other 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. (8) If— (a) a court makes a civil forfeiture restraining order against property in relation to a Schedule 2 offence; and (b) a person claiming an interest in the property is charged with the offence or any other 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 proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person. (9) If— (a) a court makes a civil forfeiture restraining order against property in relation to a Schedule 2 offence; and (b) a person claiming an interest in the property is charged with the Schedule 2 offence or a related offence; and s. 49 -- 52 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 49 (c) that person applies for a section 36V exclusion order— the person need not give notice of the grounds on which the application is made until the charge against the person is finally determined or is withdrawn. (10) Any person referred to in subsection (4) may apply to the court for an order that the hearing of the application for a section 36V exclusion order be stayed until the charge referred to in subsection (9)(b)— (a) is finally determined; or (b) is withdrawn. Notes 1 Section 36H provides that a civil forfeiture restraining order may be made in respect of property or an interest in property. 2 Section 36W enables the court to make orders varying the property to which the civil forfeiture restraining order relates. 36V Determination of application for exclusion from civil forfeiture restraining order (1) On an application under section 36U, the Supreme Court or the County Court, as the case requires, may make an order— (a) excluding the applicant's interest in the property from the operation of the civil forfeiture restraining order if the court is satisfied that— (i) the property is not derived property; and (ii) the property is not tainted property; or s. 49 -- 53 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 50 (b) excluding the applicant's interest in the property from the operation of the civil forfeiture restraining order if the court is not satisfied that the property in which the applicant claims an interest is not tainted property or derived property but is satisfied that— (i) the applicant— (A) did not have knowledge of the commission of the Schedule 2 offence at the time of its commission or of the likely or intended future commission of the Schedule 2 offence, as the case requires; or (B) was not wilfully blind as to the commission of the Schedule 2 offence at the time of its commission or of the likely or intended future commission of the Schedule 2 offence, as the case requires; or (C) did have knowledge of, or was wilfully blind as to, the commission of the Schedule 2 offence at the time of its commission or of the likely or intended future commission of the Schedule 2 offence, as the case requires, but the applicant did not condone or permit the commission of the offence; and s. 49 -- 54 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 51 (ii) where the applicant acquired the interest before the commission, or alleged commission, of the Schedule 2 offence, the applicant did not know that the property— (A) would be, or was intended to be, used in, or in connection with, the commission of the Schedule 2 offence; or (B) was likely to be used or intended to be, used in, or in connection with, the future commission of the Schedule 2 offence; and (iii) where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the Schedule 2 offence, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property or derived property; and (iv) the applicant's interest in the property— (A) was not subject to the effective control of another person on the date that the civil forfeiture restraining order was made in relation to the property; or (B) was subject to the effective control of another person on the date that the civil forfeiture restraining order s. 49 -- 55 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 52 was made in relation to the property but the person in effective control satisfies subparagraphs (i) to (iii) as if a reference in those subparagraphs to the applicant were a reference to the person in effective control; and (v) where the applicant acquired the interest, directly or indirectly, from another person that— (A) it was acquired for sufficient consideration; or (B) if it was not acquired for sufficient consideration, the person from whom the interest was acquired satisfies subparagraphs (i) to (iii) as if a reference in those subparagraphs to the applicant were a reference to the person from whom the interest was acquired. (2) 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. (3) For the purposes of this section wilfully blind includes, but is not limited to, a failure to make inquires about the actual or likely commission of an offence in circumstances which a reasonable person would consider suspicious. s. 49 -- 56 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 53 36W Further orders (1) The Supreme Court or the County Court, as the case requires, may make any orders in relation to the property to which the civil forfeiture restraining order relates as it considers just. (2) An order under subsection (1) may be made— (a) when the court makes a civil forfeiture 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 civil forfeiture restraining order; or (b) a person to whose property the civil forfeiture restraining order relates or who has an interest in that property; or (c) a trustee, if the civil forfeiture 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. s. 49 -- 57 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 54 (5) The applicant for an order under subsection (1) must give written notice of the application to each other person referred to in subsections (3)(a) to (3)(d) who could have applied for the order. (6) Examples of the kind of order that the court may make under subsection (1) are— (a) an order varying the property to which the civil forfeiture restraining order relates; (b) an order varying any condition to which the civil forfeiture restraining order is subject; (c) an order providing for the reasonable living expenses and reasonable business expenses of any person referred to in section 36H(4); (d) an order relating to the carrying out of any undertaking given under section 36H(7) in relation to the civil forfeiture restraining order; (e) an order for examination under Part 12; (f) an order directing any person whose property the civil forfeiture 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 civil forfeiture restraining order relates as the court thinks proper; s. 49 -- 58 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 55 (g) an order directing any relevant registration authority not to register any instrument affecting property to which the civil forfeiture restraining order relates while it is in force except in accordance with the order; (h) if the civil forfeiture restraining order did not direct a trustee to take control of property in accordance with section 36H(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 civil forfeiture 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 civil forfeiture restraining order; (ii) an order determining any question relating to the property; (j) an order directing a person to whose property the civil forfeiture restraining order relates or who has an interest in that property to use or manage specified property to which the civil forfeiture 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 managing specified property to which s. 49 -- 59 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 56 the civil forfeiture 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). 36X Duration and setting aside of civil forfeiture restraining order (1) A civil forfeiture restraining order ceases to be in force on the expiry of 90 days after it is made unless an application for a civil forfeiture order in respect of the restrained property is then pending before the Supreme Court or the County Court. (2) While a civil forfeiture restraining order in respect of an interest in property is in force, if the court that made the civil forfeiture restraining order makes a civil forfeiture order in respect of the interest, that court may— (a) make an order setting aside the civil forfeiture restraining order in respect of the whole or a specified part of the interest; or (b) make any other order it considers appropriate in relation to the operation of the civil forfeiture restraining order. (3) The court that made the civil forfeiture restraining order may make an order setting aside a civil forfeiture restraining order on the application of a person if the person gives undertakings satisfactory to the court concerning the person's property. s. 49 -- 60 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 57 (4) An order under subsection (2) or (3) may be made so as— (a) to set aside the civil forfeiture restraining order wholly or in part; and (b) to take effect— (i) on the making of the first- mentioned order; or (ii) at a specified time; or (iii) if relevant, on the payment of money or the transfer of any interest in property to the Minister; or (iv) on the happening of some other specified event. (5) When an order referred to in subsection (4) takes effect, the civil forfeiture restraining order ceases to be in force to the extent to which it is set aside. (6) An order under subsection (2) or (3) may be made on the application of— (a) the applicant for the civil forfeiture restraining order; or (b) any person to whose property the civil forfeiture restraining order relates or who has an interest in that property; or (c) a trustee, if the civil forfeiture restraining order directed the trustee to take control of property; or (d) any other person who obtains the leave of the court to apply. s. 49 -- 61 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 58 (7) The court that makes a civil forfeiture restraining order may make an order setting aside the civil forfeiture restraining order if the civil forfeiture restraining order is no longer required or appropriate. (8) An order under subsection (7) may be made on the application of the applicant for the civil forfeiture restraining order. 36Y Registration of civil forfeiture restraining order (1) If— (a) a civil forfeiture 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 civil forfeiture restraining order, record on the register the prescribed particulars of the civil forfeiture restraining order. (2) Without limiting subsection (1), if a civil forfeiture 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— s. 49 -- 62 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 59 (a) the applicant for the civil forfeiture restraining order; or (b) if the civil forfeiture restraining order directed a trustee to take control of the property, the trustee. Note Section 36H provides that a restraining order may be made in respect of property or an interest in property. 36Z Contravention of civil forfeiture restraining order A person who knowingly contravenes a civil forfeiture 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 whichever is greater of— (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)— or to both. 36ZA Priority given to payment of restitution or compensation (1) If both a civil forfeiture restraining order and a restraining order for the purposes of section 15(1)(e) are made in relation to the same property and an order for restitution or compensation is made under the Sentencing Act 1991 in relation to the offence in reliance on which the civil forfeiture restraining order and the restraining order for the purposes of section 15(1)(e) are made or damages are awarded in relation to that s. 49 -- 63 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 60 offence, the State must ensure that the order for restitution, compensation or damages is satisfied, in accordance with section 36ZB, to the value of the restrained property, before civil forfeiture of the property which is subject to the civil forfeiture restraining order occurs. (2) Subsection (1) only applies if— (a) the property was not subject to a restraining order for a purpose referred to in section 15(1)(a), (b) or (d); or (b) restitution, compensation or damages have not been fully satisfied in accordance with sections 30 and 31. 36ZB State to pay restitution and compensation out of forfeited property etc. (1) If— (a) property is forfeited under this Part in relation to the offence in reliance on which a civil forfeiture restraining order is made; and (b) an order for restitution or compensation is made under the Sentencing Act 1991 in relation to that offence or damages are awarded in relation to that offence— the State must satisfy, subject to subsection (2), to the value of the property forfeited (less conversion costs), the order for restitution, compensation or damages. (2) If, in relation to an offence, the value of the property forfeited under this Part (less conversion costs) is less than the sum of orders for restitution, compensation or damages, the State must pay to each person s. 49 -- 64 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 61 awarded restitution, compensation or damages an amount calculated in accordance with the formula— F  V/A where— F is the value of the property forfeited under this Part (less conversion costs); V is a victim's award of restitution, compensation or damages to the extent that it has not been satisfied; A is the total of awards of restitution, compensation and damages in respect of the offence. Note Property is defined as including any interest in property. See section 3(1). Division 2—Civil forfeiture orders 37 Application for civil forfeiture order (1) If a civil forfeiture restraining order is in force in respect of property, the DPP or a prescribed person, or a person belonging to a prescribed class of persons, may apply to the court which made the civil forfeiture restraining order for a civil forfeiture order in respect of the property. Note Only the Supreme Court or the County Court can make a civil forfeiture restraining order. (2) The applicant must give written notice of the application under subsection (1) to every person who the applicant has reason to believe has an interest in the property. s. 49 -- 65 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 62 (3) The court may waive the requirement under subsection (2) to give notice if the court is satisfied either— (a) that any person who has an interest in the property is present before the court; or (b) that it is fair to waive the requirement despite any such person not being present. (4) At any time before the final determination of the application, the court may require the applicant to give notice of the application to any person, in any manner and within any time that the court thinks fit. (5) Any person notified under subsection (4) and any other person who claims an interest in the property are entitled to appear and to give evidence at the hearing of the application but the absence of a person does not prevent the court from making a civil forfeiture order. (6) At any time before the final determination of the application, the court may amend the application as it thinks fit, either— (a) at the request of the applicant; or (b) with the approval of the applicant. (7) If an application under subsection (1) has been finally determined, no further application may be made under that subsection in relation to the same Schedule 2 offence, except with the leave of the court. s. 49 -- 66 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 63 (8) The court must not grant leave under subsection (7) unless it is satisfied that— (a) the property to which the new application relates was derived, realised or identified only after the earlier application was determined; or (b) necessary evidence became available only after the earlier application was determined; or (c) it is otherwise in the interests of justice to do so. (9) 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. (10) The court must cause a copy of any order made under subsection (9) to be posted on a door of the court house or in another conspicuous place where notices are usually posted at the court house. s. 49 -- 67 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 64 (11) A person must not contravene an order posted under subsection (10). Penalty: Imprisonment for 12 months or 1000 penalty units. Note Section 36H provides that a civil forfeiture restraining order may be made in respect of property or an interest in property. 38 Determination of application for civil forfeiture order (1) On an application under section 37(1) for a civil forfeiture order, the court which made the civil forfeiture restraining order must order that the restrained property be forfeited to the Minister if the court is satisfied that— (a) the requirements of section 37 as to notice of the application have been complied with; and (b) not less than 30 days have elapsed since the last notice given in accordance with section 37; and (c) there are no pending applications for a section 36V exclusion order in relation to the restrained property. (2) The court may exclude particular property or any particular interest in property from the operation of a civil forfeiture order if satisfied that otherwise hardship may reasonably be likely to be caused to any person by the order. (3) A civil forfeiture order must specify the interests in property to which it applies. (4) Subject to any rules of court, the court may take into account in determining the application any material that it thinks fit. s. 49 -- 68 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 65 (5) The making of a civil forfeiture order does not prevent the making of a pecuniary penalty order. 39 Consent orders (1) The court which made a civil forfeiture restraining order may make a civil forfeiture order by consent of— (a) the applicant; and (b) the respondent; and (c) any person whom it has reason to believe has an interest in property in respect of which the order is made. (2) A law enforcement agency or an applicant for a civil forfeiture order must not enter into an agreement to settle any matter in respect of which a civil forfeiture order could be made under this Division and which involves the payment of money or the transfer of any interest in property to the Minister except— (a) by way of a consent order under subsection (1); or (b) as restitution of stolen property; or (c) as compensation for loss or destruction of, or damage to, property; or (d) with the approval of the court. 40 Forfeiture of property that may be used as evidence in trial A civil forfeiture order may be made in respect of any interest in property that may have evidentiary value in any criminal proceedings but the property must not be disposed of or otherwise dealt with before the end of the appeal period in relation to those proceedings. s. 49 -- 69 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 66 Division 3—Orders for exclusion from civil forfeiture orders 40A Application for exclusion from civil forfeiture order (1) Subject to subsections (2) and (4), if property is forfeited to the Minister under section 38, 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 civil forfeiture order under section 38 for a section 40B exclusion order excluding the interest in the property from the civil forfeiture order. Note Only the Supreme Court or the County Court can make a civil forfeiture order under section 38. (2) Subject to subsection (3), the application 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) The court that made the relevant civil forfeiture order under section 38 may grant a person leave to apply after the end of the period referred to in subsection (2) if it is satisfied that the delay in making the application is not due to neglect on the part of the applicant. (4) Except with the leave of the court, an application for a section 40B exclusion order in relation to an interest in property must not be made by a person who was given notice of— (a) proceedings on the application for the civil forfeiture restraining order; or s. 49 -- 70 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 67 (b) the making of the civil forfeiture restraining order. (5) The court may grant a person leave under subsection (4) 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 civil forfeiture restraining order was not due to neglect on the part of the applicant. (6) An applicant must give written notice of the application, and, subject to subsection (11), of the grounds on which it is made— (a) to the applicant for the civil forfeiture order; and (b) to any person whom the applicant has reason to believe had an interest in the property immediately before it was forfeited. (7) Any person notified under subsection (6) 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 40B exclusion order. (8) If the applicant for the civil forfeiture order proposes to contest an application under this section for a section 40B exclusion order, that applicant must give the applicant for the section 40B exclusion order written notice of the grounds on which the application for the section 40B exclusion order is to be contested. (9) If— (a) a court makes a civil forfeiture order against property in relation to a Schedule 2 offence; and s. 49 -- 71 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 68 (b) a person claiming an interest in the property is charged with the offence or any other 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. (10) If— (a) a court makes a civil forfeiture order against property in relation to a Schedule 2 offence; and (b) a person claiming an interest in the property is charged with the offence or any other 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 proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person. (11) If— (a) a court makes a civil forfeiture order against property in relation to a Schedule 2 offence; and (b) a person claiming an interest in the property is charged with the Schedule 2 offence or a related offence; and s. 49 -- 72 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 69 (c) that person applies under this section for a section 40B exclusion order— the person need not give notice of the grounds on which the application is made until the charge against the person is finally determined or is withdrawn. (12) Any person referred to in subsection (6) may apply to the court for an order that the hearing of the application for a section 40B exclusion order be stayed until the charge referred to in subsection (11)(b)— (a) is finally determined; or (b) is withdrawn. 40B Determination of application for exclusion from civil forfeiture order (1) On an application made under section 40A, the court may make an order excluding the applicant's interest in property from the operation of a civil forfeiture order— (a) if the court is satisfied that— (i) the interest in the property is not derived property; and (ii) the interest in the property is not tainted property; or (b) if the court is not satisfied that the property in which the applicant claims an interest is not tainted property or derived property but is satisfied that— (i) the applicant— (A) did not have knowledge of the commission of the Schedule 2 offence at the time of its commission or of the likely or intended future s. 49 -- 73 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 70 commission of the Schedule 2 offence, as the case requires; or (B) was not wilfully blind as to the commission of the Schedule 2 offence at the time of its commission or of the likely or intended future commission of the Schedule 2 offence, as the case requires; or (C) did have knowledge of, or was wilfully blind as to, the commission of the Schedule 2 offence at the time of its commission or of the likely or intended future commission of the Schedule 2 offence, as the case requires, but the applicant did not condone or permit the commission of the offence; and (ii) where the applicant acquired the interest before the commission, or alleged commission, of the Schedule 2 offence, the applicant did not know that the property— (A) would be, or was intended to be, used in, or in connection with, the commission of the Schedule 2 offence; or (B) was likely to be used or intended to be, used in, or in connection with, the future commission of the Schedule 2 offence; and s. 49 -- 74 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 71 (iii) where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the Schedule 2 offence, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property or derived property; and (iv) the applicant's interest in the property— (A) was not subject to the effective control of another person on the date that the civil forfeiture order was made in relation to the property; or (B) was subject to the effective control of another person on the date that the civil forfeiture order was made in relation to the property but the person in effective control satisfies subparagraphs (i) to (iii) as if a reference in those subparagraphs to the applicant were a reference to the person in effective control; and (v) where the applicant acquired the interest, directly or indirectly, from another person that— (A) it was acquired for sufficient consideration; or s. 49 -- 75 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 72 (B) if it was not acquired for sufficient consideration, the person from whom the interest was acquired satisfies subparagraphs (i) to (iii) as if a reference in those subparagraphs to the applicant were a reference to the person from whom the interest was acquired. (2) 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. (3) For the purposes of this section wilfully blind includes, but is not limited to a failure to make inquires about the actual or likely commission of an offence in circumstances which a reasonable person would consider suspicious. __________________". 50 Disposal of forfeited property (1) In section 44(2) of the Principal Act— (a) for "49, 51 or 53" substitute "49 or 51"; (b) after "exclusion order" insert "or under section 40A for a section 40B exclusion order". (2) In section 44(3) of the Principal Act for "an exclusion order under section 24" substitute "a section 36V exclusion order". 51 Application for, and determination of, exclusion from civil forfeiture order repealed Sections 53 and 54 of the Principal Act are repealed. s. 50 -- 76 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 73 52 Application to Minister for return of property or payment of value (1) In section 55(2) of the Principal Act— (a) for "50(1), 52(1) or 54(1)" substitute "50(1) or 52(1) or a section 40B exclusion order"; (b) after "the exclusion order" insert "or the section 40B exclusion order, as the case requires,". (2) In section 55(4) of the Principal Act after "14(4)" insert ", 36H(4)". (3) In section 55(6) of the Principal Act— (a) in paragraph (a) for "50(2), 52(2) or 54(2)" substitute "50(2) or 52(2) or under section 40B(2)"; (b) in paragraph (b) after "14(4)" insert ", 36H(4)". (4) In section 55(9) of the Principal Act— (a) in paragraph (a) for "50(2), 52(2) or 54(2)" substitute "50(2) or 52(2) or under section 40B(2)"; (b) after "14(4)" insert ", 36H(4)". 53 Civil pecuniary penalty orders repealed Division 2 of Part 8 of the Principal Act is repealed. 54 Liability under forfeiture or pecuniary penalty order to be satisfied by trustee In section 75(1) of the Principal Act after "restraining order" insert "or a civil forfeiture restraining order". s. 52 -- 77 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 74 55 Provisions concerning the trustee In section 76 of the Principal Act— (a) after "a restraining order" (wherever occurring) insert "or a civil forfeiture restraining order"; (b) after "the restraining order" (wherever occurring) insert "or the civil forfeiture restraining order". 56 Memorandum of understanding In section 78A(1)(b) of the Principal Act after "restraining order" insert "or a civil forfeiture restraining order". 57 Embargo notice In section 93(6) of the Principal Act after "restraining order" insert "or a civil forfeiture restraining order". 58 Return of seized property In section 97(1)(c) and (d) of the Principal Act for "for a purpose referred to in section 15(1)(c) or (d)" substitute "by a civil forfeiture restraining order". 59 Search and inspection warrants (1) In section 97A(1)(a) of the Principal Act after "restraining order" insert "or a civil forfeiture restraining order". (2) In section 97B(5)(c) of the Principal Act for "or embargo" substitute ", a civil forfeiture restraining order or an embargo". s. 55 -- 78 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 75 60 Order for examination In section 98 of the Principal Act— (a) for subsection (2)(a) substitute— "(a) an accused has been charged with or convicted of a Schedule 1 offence or a Schedule 2 offence or a court has made— (i) a restraining order against property under section 18 in relation to a Schedule 2 offence; or (ii) a civil forfeiture restraining order against property in relation to a Schedule 2 offence; and"; (b) in subsection (3)(a) omit "or in relation to a Schedule 2 offence"; (c) after subsection (3)(a) insert— "(ab) if a civil forfeiture restraining order is or has been made in relation to a Schedule 2 offence, the court which made the civil forfeiture restraining order; or". 61 Communication of information between law enforcement agencies In section 119A(a)(ii) of the Principal Act after "restraining order" insert "or a civil forfeiture restraining order". 62 Interstate orders and search warrants In section 131(2)(c) of the Principal Act after "restraining order" insert "or any civil forfeiture restraining order". s. 60 -- 79 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 76 63 Costs In section 133A(3) of the Principal Act— (a) in paragraph (a) for "restraining order for the purpose of civil forfeiture" substitute "civil forfeiture restraining order"; (b) in paragraph (b) for "restraining order for the purpose of civil forfeiture" substitute "civil forfeiture restraining order"; (c) after "applicant for the civil forfeiture order or" insert "civil forfeiture"; (d) in paragraph (d) omit "(other than the accused)". 64 Reports to the Minister In section 139A(1)(d) of the Principal Act after "restraining order" insert "or a civil forfeiture restraining order". 65 Appeals (1) In section 142(2)(b) of the Principal Act for "an exclusion order under section 24 or 54(1)" substitute "a civil forfeiture exclusion order". (2) In section 142(4) of the Principal Act, for "24, 50(1), 52(1) or 54(1)" (where twice occurring) substitute "50(1) or 52(1)". (3) For section 142(5)(b) of the Principal Act substitute— "(b) the making of a civil forfeiture exclusion order; or". (4) In section 142(5) of the Principal Act— (a) in paragraph (ba) for "; or" substitute "—"; (b) paragraph (c) is repealed. s. 63 -- 80 of 93 -- Part 3—Civil Forfeiture Amendments Confiscation Amendment Act 2010 No. 68 of 2010 77 (5) In section 142(6) of the Principal Act for "an exclusion order under section 24 or 54(1)" (where twice occurring) substitute "a civil forfeiture exclusion order". 66 Provision of legal aid In section 143 of the Principal Act— (a) in subsection (1)(a) after "a restraining order" insert "or a civil forfeiture restraining order"; (b) in subsection (1) after "the restraining order" (where twice occurring) insert "or the civil forfeiture restraining order, as the case requires,"; (c) in subsection (6)— (i) after "section 31" insert "or section 36ZB"; (ii) after "the restraining order" insert "or the civil forfeiture restraining order, as the case requires,". __________________ s. 66 -- 81 of 93 -- Part 4—Transitional Provisions, Consequential Amendments to Other Acts and Repeal Confiscation Amendment Act 2010 No. 68 of 2010 78 PART 4—TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENTS TO OTHER ACTS AND REPEAL 67 Transitional (1) Insert the following heading to section 157 of the Principal Act— "Transitional provisions—Enactment of Confiscation Act 1997". (2) After section 157(13) of the Principal Act insert— "(14) In this section, a reference to Part 4 does not include Part 4 as substituted by section 49 of the Confiscation Amendment Act 2010.". 68 New sections 179 and 180 inserted After section 178 of the Principal Act insert— "179 Transitional—Confiscation Amendment Act 2010 (1) Section 3A as inserted by section 5 of the Confiscation Amendment Act 2010 applies to— (a) a proceeding commenced on or after the commencement of section 5 of that Act; and (b) a proceeding commenced before the commencement of section 5 of that Act that has not been determined before that commencement. (2) Section 16 as amended by section 7 of the Confiscation Amendment Act 2010 applies to an application under section 16 that is made on or after the commencement of section 7 of that Act. s. 67 -- 82 of 93 -- Part 4—Transitional Provisions, Consequential Amendments to Other Acts and Repeal Confiscation Amendment Act 2010 No. 68 of 2010 79 (3) Section 19B as amended by section 8 of the Confiscation Amendment Act 2010 applies to any notice issued under section 19A on or after the commencement of section 8 of that Act irrespective of when the restraining order is made. (4) Section 27 as amended by section 15 of the Confiscation Amendment Act 2010 applies to a restraining order, irrespective of when the order was made. (5) Section 31H(2)(b) as amended by section 16 of the Confiscation Amendment Act 2010 applies to a freezing order made on or after the commencement of section 16 of that Act. (6) Division 3 of Part 3 as inserted by section 19 of the Confiscation Amendment Act 2010 applies with respect to Schedule 2 offences only if they are alleged to have been committed on or after the commencement of section 19 of that Act. (7) For the purposes of subsection (6), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 19 of the Confiscation Amendment Act 2010, the offence is alleged to have been committed before that commencement. (8) Section 62 as amended by section 20 of the Confiscation Amendment Act 2010 applies to a pecuniary penalty order made on or after the commencement of section 20 of that Act. (9) Section 69A as inserted by section 22 of the Confiscation Amendment Act 2010 applies to a pecuniary penalty order made on or after the commencement of section 22 of that Act. s. 68 -- 83 of 93 -- Part 4—Transitional Provisions, Consequential Amendments to Other Acts and Repeal Confiscation Amendment Act 2010 No. 68 of 2010 80 (10) Section 74 as amended by section 23 of the Confiscation Amendment Act 2010 applies to a pecuniary penalty order made on or after the commencement of section 23 of that Act. (11) Section 118E as amended by section 25 of the Confiscation Amendment Act 2010 applies in relation to— (a) property in respect of which a restraining order (including a restraining order made for the purposes of civil forfeiture before the repeal of section 15(1)(c) by section 40 of the Confiscation Amendment Act 2010) or a civil forfeiture restraining order is in force on or after the commencement of section 25 of that Act, irrespective of when the order was made; and (b) property that is or has been forfeited under this Act, irrespective of when the forfeiture occurs. (12) Section 118G as amended by section 26 of the Confiscation Amendment Act 2010 applies to information notices issued on or after the commencement of section 26 of that Act. (13) Section 118H as amended by section 27 of the Confiscation Amendment Act 2010 applies to information notices issued on or after the commencement of section 27 of that Act. (14) Section 119 as amended by section 28(3) of the Confiscation Amendment Act 2010 applies irrespective of whether the information was communicated to the AUSTRAC CEO before, on or after the commencement of section 28(3) of that Act. s. 68 -- 84 of 93 -- Part 4—Transitional Provisions, Consequential Amendments to Other Acts and Repeal Confiscation Amendment Act 2010 No. 68 of 2010 81 (15) Section 120A as amended by section 29 of the Confiscation Amendment Act 2010 applies in relation to— (a) property in respect of which a restraining order (including a restraining order made for the purposes of civil forfeiture before the repeal of section 15(1)(c) by section 40 of the Confiscation Amendment Act 2010) or a civil forfeiture restraining order is in force on or after the commencement of section 29 of that Act, irrespective of when that was made; and (b) property that is or has been forfeited under this Act, irrespective of when the forfeiture occurs. (16) Sections 133 and 133A as amended by section 30 of the Confiscation Amendment Act 2010 apply to a proceeding on an application under this Act, where the application is made on or after the commencement of section 30 of that Act. (17) Section 141A as inserted by section 31 of the Confiscation Amendment Act 2010 applies to a scheme entered into on or after the commencement of section 31 of that Act. (18) Schedule 2 as amended by section 32(1) of the Confiscation Amendment Act 2010 applies to an offence alleged to have been committed on or after the commencement of section 32(1) of that Act. (19) Schedule 2 as amended by section 32(2) of the Confiscation Amendment Act 2010 applies to an offence alleged to have been committed on or after the commencement of section 32(2) of that Act. s. 68 -- 85 of 93 -- Part 4—Transitional Provisions, Consequential Amendments to Other Acts and Repeal Confiscation Amendment Act 2010 No. 68 of 2010 82 (20) For the purposes of subsections (18) and (19), if an offence is alleged to have been committed between two dates, one before and one on or after the commencement of section 32(1) or 32(2) (as the case requires) of the Confiscation Amendment Act 2010, the offence is alleged to have been committed before that commencement. 180 Regulations dealing with transitional matters (1) The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of the Confiscation Amendment Act 2010, including the repeals and amendments made by that Act. (2) Regulations made under this section may— (a) have a retrospective effect to a day on or from the date that the Confiscation Amendment Act 2010 receives the Royal Assent; and (b) be of limited or general application; and (c) leave any matter or thing to be decided by a specified person or specified class of persons; and (d) provide for the exemption of persons or proceedings or a class of persons or proceedings from any of the regulations made under this section. s. 68 -- 86 of 93 -- Part 4—Transitional Provisions, Consequential Amendments to Other Acts and Repeal Confiscation Amendment Act 2010 No. 68 of 2010 83 (3) Regulations made under this section have effect despite anything to the contrary— (a) in any Act (other than the Confiscation Amendment Act 2010 or the Charter of Human Rights and Responsibilities Act 2006); or (b) in any subordinate instrument.". 69 New sections 181 to 184 inserted At the end of Part 18 of the Principal Act insert— "181 Confiscation Amendment Act 2010— proceedings for civil forfeiture generally (1) In this section old civil forfeiture matter means— (a) an application under any of the following sections made but not determined before the commencement of Part 3 of the Confiscation Amendment Act 2010— (i) section 16(2)(a) for a restraining order for the purposes of section 15(1)(c) as in force immediately before its repeal; (ii) section 20 for an exclusion order under section 24 as in force immediately before its repeal; (iii) section 37 (as in force immediately before its substitution by section 49 of that Act) for a civil forfeiture order; (iv) section 53 for an exclusion order under section 54 as in force immediately before its repeal; s. 69 -- 87 of 93 -- Part 4—Transitional Provisions, Consequential Amendments to Other Acts and Repeal Confiscation Amendment Act 2010 No. 68 of 2010 84 (v) section 55 as in force immediately before its amendment by section 52 of that Act; (b) any of the following orders made and in force immediately before the commencement of Part 3 of the Confiscation Amendment Act 2010— (i) a restraining order for the purposes of civil forfeiture made under section 18(2) as in force immediately before its repeal; (ii) an exclusion order under section 24 as in force immediately before its repeal; (iii) any further order made under section 26 in relation to property restrained for the purposes of civil forfeiture immediately before that commencement; (iv) an order under section 27(4) (as in force immediately before its amendment by section 45(2) of that Act) in relation to a restraining order for the purposes of civil forfeiture; (v) an order for civil forfeiture under section 38 (as in force immediately before its substitution by section 49 of that Act); (vi) an exclusion order under section 54(1) as in force immediately before its repeal; (vii) an order under section 54(2) as in force immediately before its repeal; s. 69 -- 88 of 93 -- Part 4—Transitional Provisions, Consequential Amendments to Other Acts and Repeal Confiscation Amendment Act 2010 No. 68 of 2010 85 (c) any refusal to make a civil forfeiture order under section 38 (as in force immediately before its substitution by section 49 of that Act); (d) any refusal to make an exclusion order under section 24 or 54(1) as in force immediately before their repeal; (e) any refusal to make an order under section 54(2) as in force immediately before its repeal. (2) Despite the commencement of Part 3 of the Confiscation Amendment Act 2010, this Act, as in force immediately before that commencement, continues to apply in respect of any old civil forfeiture matter as if Part 3 of the Confiscation Amendment Act 2010 had not been enacted. (3) Part 4 as substituted by section 49 of the Confiscation Amendment Act 2010 applies with respect to any proceedings for civil forfeiture commenced on or after the commencement of section 49 of that Act irrespective of whether the property to which the proceeding relates is or was reasonably suspected of being tainted property in relation to a Schedule 2 offence before, on or after that commencement. 182 Confiscation Amendment Act 2010— tainted property and derived property (1) The definition of derived property as substituted by section 35(4) of the Confiscation Amendment Act 2010 applies with respect to any proceedings for civil forfeiture commenced on or after the commencement of section 35(4) of that Act irrespective of whether the Schedule 2 s. 69 -- 89 of 93 -- Part 4—Transitional Provisions, Consequential Amendments to Other Acts and Repeal Confiscation Amendment Act 2010 No. 68 of 2010 86 offence to which the property relates was committed before, on or after that commencement. (2) If a proceeding for civil forfeiture has commenced before commencement of section 35(4) of the Confiscation Amendment Act 2010, the definition of derived property, as in force immediately before the commencement of section 35(4) of that Act, continues to apply as if that definition had not been substituted by that section. (3) The definition of tainted property as substituted by section 35(5) of the Confiscation Amendment Act 2010 applies with respect to any proceedings for civil forfeiture commenced on or after the commencement of section 35(5) of that Act irrespective of whether the Schedule 2 offence to which the property relates was committed before, on or after that commencement. (4) If a proceeding for civil forfeiture has commenced before commencement of section 35(5) of the Confiscation Amendment Act 2010, the definition of tainted property, as in force immediately before the commencement of section 35(5) of that Act, continues to apply as if that definition had not been substituted by that section. s. 69 -- 90 of 93 -- Part 4—Transitional Provisions, Consequential Amendments to Other Acts and Repeal Confiscation Amendment Act 2010 No. 68 of 2010 87 183 Confiscation Amendment Act 2010— freezing orders (1) An application for a freezing order under section 31D(1A) as inserted by section 46 of the Confiscation Amendment Act 2010 may be made on or after the commencement of section 46 of that Act irrespective of whether the Schedule 2 offence to which the property relates was committed before, on or after that commencement. (2) On and from the commencement of Part 3 of the Confiscation Amendment Act 2010 an application for a civil forfeiture restraining order may be made in relation to money in an account which is subject to a freezing order made and in force immediately before the commencement of that Part. (3) Any pending application for a freezing order made but not determined before the commencement of Part 3 of the Confiscation Amendment Act 2010 is to be determined under this Act as in force immediately before that commencement. 184 Transitional provisions for Confiscation Amendment Act 2010 do not derogate from Interpretation of Legislation Act 1984 Sections 181 to 183 are in addition to, and not in derogation from, the provisions of the Interpretation of Legislation Act 1984.". s. 69 -- 91 of 93 -- Part 4—Transitional Provisions, Consequential Amendments to Other Acts and Repeal Confiscation Amendment Act 2010 No. 68 of 2010 88 70 Sentencing Act 1991 (1) In section 85(1) of the Sentencing Act 1991 after "section 30" insert "or section 36ZA". (2) In section 85M of the Sentencing Act 1991 after "section 30" insert "or section 36ZA". (3) In section 87 of the Sentencing Act 1991 after "section 30" insert "or section 36ZA". (4) After clause 3 of Schedule 1A to the Sentencing Act 1991 insert— "4. An offence against section 111A, 111B or 111C of the Fisheries Act 1995 where the quantity of fish in respect of which the offence is committed is not less than 5 times the commercial quantity (within the meaning of that Act).". 71 Repeal of amending Act This Act is repealed on 1 January 2013. 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). ═══════════════ See: Act No. 49/1991. Reprint No. 11 as at 15 January 2009 and amending Act Nos 46/2008, 7/2009, 22/2009, 68/2009, 69/2009, 77/2009, 87/2009, 91/2009, 93/2009, 7/2010, 13/2010, 18/2010, 29/2010 and 30/2010. LawToday: www. legislation. vic.gov.au s. 70 -- 92 of 93 -- Confiscation Amendment Act 2010 No. 68 of 2010 89 ENDNOTES † Minister's second reading speech— Legislative Assembly: 12 August 2010 Legislative Council: 2 September 2010 The long title for the Bill for this Act was "A Bill for an Act to amend the Confiscation Act 1997 and for other purposes." Endnotes -- 93 of 93 --