Confiscation Amendment Act 2007

Confiscation Amendment Act 2007 No. 42 of 2007 TABLE OF PROVISIONS Section Page 1 Purpose 1 2 Commencement 2 3 Principal Act 2 4 Definitions 2 5 Determination of exclusion application—restraining order— Schedule 1 offence 5 6 Determination of exclusion application—restraining order— automatic forfeiture 5 7 Declaration that restraining order shall be disregarded for purposes of automatic forfeiture 7 8 Determination of exclusion application—restraining order— civil forfeiture 7 9 Automatic forfeiture of restrained property on conviction of certain offences 8 10 Determination of exclusion application—forfeiture order 8 11 Determination of exclusion application—automatic forfeiture 9 12 Determination of exclusion application—civil forfeiture order 9 13 Assessment of benefits in relation to Schedule 2 offences 10 14 Declaration that property available to satisfy order 10 15 Order for examination 10 16 Appeals 10 17 New sections 176, 177 and 178 inserted 11 176 Validation of certain exclusion orders—Confiscation Amendment Act 2007 11 177 Existing applications for exclusion orders— Confiscation Amendment Act 2007 14 178 Sufficient consideration—Confiscation Amendment Act 2007 15 18 Miscellaneous amendments relating to property 16 19 Repeal of Act 16 __________________ i -- 1 of 23 -- Section Page SCHEDULE—Miscellaneous Amendments to the Principal Act Relating to Property 17 1 Section 11 17 2 Section 12 17 3 Section 15 17 4 Section 19 17 5 Section 20 18 6 Section 26 18 7 Section 27 18 8 Section 28 18 9 Section 29 18 10 Section 31 18 11 Section 36 19 12 Section 37 19 13 Section 38 19 14 Section 39 19 15 Section 51 19 16 Section 53 19 17 Section 60 19 18 Section 65 19 19 Section 67 20 20 Section 68 20 21 Section 133A 20 ═══════════════ ENDNOTES 21 ii -- 2 of 23 -- Victoria Confiscation Amendment Act 2007† No. 42 of 2007 [Assented to 25 September 2007] The Parliament of Victoria enacts: 1 Purpose The main purpose of this Act is to amend the Confiscation Act 1997— (a) to clarify the operation and scope of provisions relating to exclusion orders, including related appeal provisions; and (b) to make miscellaneous amendments relating to interests in property which may be subject to orders under that Act. 1 -- 3 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 s. 2 2 Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. 3 Principal Act In this Act, the Confiscation Act 1997 is called the Principal Act. See: Act No. 108/1997. Reprint No. 4 as at 10 March 2005 and amending Act Nos 108/2004, 6/2005, 18/2005, 16/2006, 79/2006 and 10/2007. LawToday: www. legislation. vic.gov.au 4 Definitions (1) In section 3(1) of the Principal Act insert the following definitions— "derived property means property— (a) used in, or in connection with, any unlawful activity by— (i) the defendant; or (ii) the person who is suspected of having committed a Schedule 2 offence; or (iii) the applicant for an exclusion order; or (b) derived or realised, or substantially derived or realised, directly or indirectly, from any unlawful activity by— 2 -- 4 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 s. 4 (i) the defendant; or (ii) the person who is suspected of having committed a Schedule 2 offence; or (iii) the applicant for an exclusion order; or (c) 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 this section. domestic partner of a person means an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person— (a) for fee or reward; or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation); restrained property means property, including an interest in property, to which a restraining order applies; spouse of a person means a person to whom that person is married;". 3 -- 5 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 s. 4 (2) In section 3(1) of the Principal Act, at the foot of the definition of tainted property insert— "Note Property is defined as including any interest in property: see definition in this section.". (3) In section 3(1) of the Principal Act insert the following definition— "sufficient consideration, in relation to property, means consideration that reflects the market value of the property and does not include— (a) consideration arising from the fact of a family relationship between the transferor and transferee; (b) if the transferor is the spouse or domestic partner of the transferee, the making of a deed in favour of the transferee; (c) a promise by the transferee to become the spouse or domestic partner of the transferor; (d) consideration arising from love and affection; (e) transfer by way of gift;". (4) After section 3(2) of the Principal Act insert— "(3) For the purposes of the definition of domestic partner in subsection (1)— (a) in determining whether persons are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 275(2) of the Property Law Act 1958 as may be relevant in a particular case; 4 -- 6 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 s. 5 (b) a person is not a domestic partner of another person only because they are co-tenants.". 5 Determination of exclusion application—restraining order—Schedule 1 offence (1) In section 21 of the Principal Act— (a) in paragraph (a), after "order excluding the" insert "applicant's interest in the"; (b) in paragraph (b), after "order excluding the" (where twice occurring) insert "applicant's interest in the". (2) For section 21(b)(i)(D) of the Principal Act substitute— "(D) the applicant's interest in the property was not subject to the effective control of the defendant on the earlier of the date that the defendant was charged with the Schedule 1 offence or the date that the restraining order was made in relation to the property; and". (3) For section 21(b)(ii)(A) of the Principal Act substitute— "(A) the applicant's interest in the property was not subject to the effective control of the defendant on the earlier of the date that the defendant was charged with the Schedule 1 offence or the date that the restraining order was made in relation to the property; and". 6 Determination of exclusion application—restraining order—automatic forfeiture (1) In section 22 of the Principal Act— (a) in paragraph (a), after "order excluding the" insert "applicant's interest in the"; (b) in paragraph (b), after "order excluding the" insert "applicant's interest in the"; 5 -- 7 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 s. 6 (c) in paragraph (c), after "order excluding the" insert "applicant's interest in the". (2) After section 22(a)(ii) of the Principal Act insert— "(iia) the property is not derived property; and". (3) In section 22(b)(i) of the Principal Act, after "tainted property" (where twice occurring) insert "or derived property". (4) For section 22(b)(i)(D) of the Principal Act substitute— "(D) the applicant's interest in the property was not subject to the effective control of the defendant on the earlier of the date that the defendant was charged with the Schedule 2 offence or the date that the restraining order was made in relation to the property; and". (5) In section 22(b)(ii) of the Principal Act— (a) after "tainted property" insert "or derived property"; (b) for sub-subparagraph (A) substitute— "(A) the applicant's interest in the property was not subject to the effective control of the defendant on the earlier of the date that the defendant was charged with the Schedule 2 offence or the date that the restraining order was made in relation to the property; and". (6) For section 22(c)(iii) of the Principal Act substitute— "(iii) the property is not derived property; and (iiia) the property is not tainted property; and". 6 -- 8 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 s. 7 7 Declaration that restraining order shall be disregarded for purposes of automatic forfeiture (1) In section 23 of the Principal Act, after "which it relates to" insert "the applicant's interest in". (2) In section 23 of the Principal Act— (a) in paragraph (a), for "and (ii)" substitute ", (ii) and (iia)"; (b) in paragraph (b), for "and (iii)" substitute ", (iii) and (iiia)". (3) At the foot of section 23 of the Principal Act insert— "Note If the applicant's interest in property was restrained for the purposes of satisfying a pecuniary penalty order or an order for restitution or compensation under the Sentencing Act 1991, it continues to be so restrained despite the applicant's interest being unavailable for the purposes of automatic forfeiture.". 8 Determination of exclusion application—restraining order—civil forfeiture (1) In section 24 of the Principal Act— (a) in paragraph (a), after "order excluding the" insert "applicant's interest in the"; (b) in paragraph (b), after "order excluding the" insert "applicant's interest in the". (2) In section 24(a) of the Principal Act, before subparagraph (ii) insert— "(i) the property is not derived property; and". (3) In section 24(b) of the Principal Act, after "tainted property" (where twice occurring) insert "or derived property". 7 -- 9 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 s. 9 (4) For section 24(b)(iv) of the Principal Act substitute— "(iv) the applicant's interest in the property was not subject to the effective control of the person who is suspected to have committed the Schedule 2 offence on the earlier of the date on which that person was charged with the Schedule 2 offence (if such a charge was filed) or the date that the restraining order was made in relation to the property; and". 9 Automatic forfeiture of restrained property on conviction of certain offences In section 35(1) of the Principal Act, for "restrained property is forfeited" substitute "restrained property, subject to any declaration under section 23, is forfeited". 10 Determination of exclusion application—forfeiture order (1) In section 50(1) of the Principal Act— (a) in paragraph (a), after "order excluding the" insert "applicant's interest in the"; (b) in paragraph (b), after "order excluding the" insert "applicant's interest in the". (2) For section 50(1)(a)(iv) of the Principal Act substitute— "(iv) the applicant's interest in the property was not subject to the effective control of the defendant on the earlier of the date that the defendant was charged with the Schedule 1 offence or the date that the restraining order was made in relation to the property; and". 8 -- 10 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 s. 11 11 Determination of exclusion application—automatic forfeiture (1) In section 52(1) of the Principal Act, for "property in which the applicant claims an interest" substitute "the applicant's interest in property". (2) In section 52(1) of the Principal Act, after "tainted property" (wherever occurring) insert "or derived property". (3) For section 52(1)(a)(iv) of the Principal Act substitute— "(iv) the applicant's interest in the property was not subject to the effective control of the defendant on the earlier of the date that the defendant was charged with the Schedule 2 offence or the date that the restraining order was made in relation to the property; and". (4) For section 52(1)(b)(i) of the Principal Act substitute— "(i) the applicant's interest in the property was not subject to the effective control of the defendant on the earlier of the date that the defendant was charged with the Schedule 2 offence or the date that the restraining order was made in relation to the property; and". 12 Determination of exclusion application—civil forfeiture order (1) In section 54(1) of the Principal Act— (a) for "excluding property in which the applicant claims an interest" substitute "excluding the applicant's interest in property"; (b) after "tainted property" (wherever occurring) insert "or derived property". 9 -- 11 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 s. 13 (2) For section 54(1)(d) of the Principal Act substitute— "(d) the applicant's interest in the property was not subject to the effective control of the person who is suspected to have committed the Schedule 2 offence on the earlier of the date on which that person was charged with the Schedule 2 offence (if such a charge was filed) or the date that the restraining order was made in relation to the property; and". 13 Assessment of benefits in relation to Schedule 2 offences For section 68(4)(a)(i)(B) of the Principal Act substitute— "(B) is not derived property; and (C) is not tainted property; or". 14 Declaration that property available to satisfy order For section 70(1)(a) of the Principal Act substitute— "(a) was subject to the effective control of the defendant on the earlier of the date that the defendant was charged with the offence for which the defendant was convicted or the date when the restraining order was made; or". 15 Order for examination In section 98(2)(c)(ii) of the Principal Act, after "tainted property" insert "or restrained property". 16 Appeals (1) In section 142(1)(b) of the Principal Act, for "section 22" substitute "section 21, 22, 50(1)". 10 -- 12 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 s. 17 (2) In section 142(4) of the Principal Act, for "section 22," (where twice occurring) substitute "section 21, 22, 24,". (3) After section 142(5)(b) of the Principal Act insert— "(ba) the making of an exclusion order under section 21, 22, 50(1) or 52(1); or". (4) At the foot of section 142 of the Principal Act insert— "Note In this section, references to any appeal being made in a manner as if it were, or were part of, a sentence imposed in respect of an offence are to enable the adoption of existing appeal procedures. In the case of an order or refusal made in the Magistrates' Court, the requirements and procedures set out in Subdivision 1 of Division 4 of Part 4 of that Act and Schedule 6 to that Act, insofar as they are relevant, apply. In the case of an order or refusal made in the County Court or the Supreme Court, the requirements and procedures set out in Part 6 of that Act and the relevant Rules of Court apply.". 17 New sections 176, 177 and 178 inserted After section 175 of the Principal Act insert— "176 Validation of certain exclusion orders— Confiscation Amendment Act 2007 (1) An exclusion order made, or purported to be made, under section 21 and in force, or purportedly in force, immediately before the commencement of section 5(1) of the Confiscation Amendment Act 2007 that would have been validly made if section 21 as amended by section 5(1) of that Act had been in operation at the time the relevant order was made or purported to be made has, and is deemed always to have had, the same 11 -- 13 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 s. 17 force and effect as it would have had if section 21 as amended by section 5(1) of that Act had been in operation at that time. (2) An exclusion order made, or purported to be made, under section 22 and in force, or purportedly in force, immediately before the commencement of section 6(1) of the Confiscation Amendment Act 2007 that would have been validly made if section 22 as amended by section 6(1) of that Act had been in operation at the time the relevant order was made or purported to be made has, and is deemed always to have had, the same force and effect as it would have had if section 22 as amended by section 6(1) of that Act had been in operation at that time. (3) An exclusion order made, or purported to be made, under section 24 and in force, or purportedly in force, immediately before the commencement of section 8(1) of the Confiscation Amendment Act 2007 that would have been validly made if section 24 as amended by section 8(1) of that Act had been in operation at the time the relevant order was made or purported to be made has, and is deemed always to have had, the same force and effect as it would have had if section 24 as amended by section 8(1) of that Act had been in operation at that time. (4) An exclusion order made, or purported to be made, under section 50(1) and in force, or purportedly in force, immediately before the commencement of section 10(1) of the Confiscation Amendment Act 2007 that would have been validly made if section 50(1) as amended by section 10(1) of that Act had been in operation at the time the relevant order was made or purported to be 12 -- 14 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 s. 17 made has, and is deemed always to have had, the same force and effect as it would have had if section 50(1) as amended by section 10(1) of that Act had been in operation at that time. (5) An exclusion order made, or purported to be made, under section 52(1) and in force, or purportedly in force, immediately before the commencement of section 11(1) of the Confiscation Amendment Act 2007 that would have been validly made if section 52(1) as amended by section 11(1) of that Act had been in operation at the time the relevant order was made or purported to be made has, and is deemed always to have had, the same force and effect as it would have had if section 52(1) as amended by section 11(1) of that Act had been in operation at that time. (6) An exclusion order made, or purported to be made, under section 54(1) and in force, or purportedly in force, immediately before the commencement of section 12(1) of the Confiscation Amendment Act 2007 that would have been validly made if section 54(1) as amended by section 12(1) of that Act had been in operation at the time the relevant order was made or purported to be made has, and is deemed always to have had, the same force and effect as it would have had if section 54(1) as amended by section 12(1) of that Act had been in operation at that time. (7) Nothing in this section affects the rights of the parties in the proceeding known as Director of Public Prosecutions v. Phan Thi Le (No. 3723 of 2006) in the Supreme Court of Victoria, Court of Appeal. 13 -- 15 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 s. 17 177 Existing applications for exclusion orders—Confiscation Amendment Act 2007 (1) Despite section 14 of the Interpretation of Legislation Act 1984, any application for an exclusion order made before, on or after 15 February 2007 but not determined before the commencement of the Confiscation Amendment Act 2007 is to be determined— (a) in the case of an application for an exclusion order to be made under section 21, as if section 21 as amended by section 5(1) of the Confiscation Amendment Act 2007 had been in operation at the time the application was made; and (b) in the case of an application for an exclusion order to be made under section 22, as if section 22 as amended by section 6(1) of the Confiscation Amendment Act 2007 had been in operation at the time the application was made; and (c) in the case of an application for an exclusion order to be made under section 24, as if section 24 as amended by section 8(1) of the Confiscation Amendment Act 2007 had been in operation at the time the application was made; and (d) in the case of an application for an exclusion order to be made under section 50, as if section 50 as amended by section 10(1) of the Confiscation Amendment Act 2007 had been in operation at the time the application was made; and 14 -- 16 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 s. 17 (e) in the case of an application for an exclusion order to be made under section 52, as if section 52 as amended by section 11(1) of the Confiscation Amendment Act 2007 had been in operation at the time the application was made; and (f) in the case of an application for an exclusion order to be made under section 54, as if section 54 as amended by section 12(1) of the Confiscation Amendment Act 2007 had been in operation at the time the application was made. (2) Nothing in this section affects the rights of the parties in the proceeding known as Director of Public Prosecutions v. Phan Thi Le (No. 3723 of 2006) in the Supreme Court of Victoria, Court of Appeal. 178 Sufficient consideration—Confiscation Amendment Act 2007 (1) The definition of sufficient consideration, as inserted by section 4(3) of the Confiscation Amendment Act 2007, applies in respect of an application under section 20, 49, 51 or 53 (as the case requires) made on or after the commencement of section 4(3) of that Act, irrespective of when the offence to which the application relates is alleged or suspected to have been committed. (2) Nothing in this section affects the rights of the parties in the proceeding known as Director of Public Prosecutions v. Phan Thi Le (No. 3723 of 2006) in the Supreme Court of Victoria, Court of Appeal.". 15 -- 17 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 s. 18 18 Miscellaneous amendments relating to property The provisions of the Principal Act specified in the Schedule are amended as set out in that Schedule. 19 Repeal of Act This Act is repealed on the first anniversary of its commencement. __________________ 16 -- 18 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 Sch. SCHEDULE Section 18 MISCELLANEOUS AMENDMENTS TO THE PRINCIPAL ACT RELATING TO PROPERTY 1 Section 11 At the foot of section 11 insert— "Note Property is defined as including any interest in property: see section 3(1).". 2 Section 12 At the foot of section 12 insert— "Note Property is defined as including any interest in property: see section 3(1).". 3 Section 15 In section 15(1)— (a) after "property", where first occurring, insert "or an interest in property"; (b) after "property", where secondly occurring, insert "or interest". 4 Section 19 At the foot of section 19 insert— "Note Section 14 provides that a restraining order may be made in respect of property or an interest in property.". 17 -- 19 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 Sch. 5 Section 20 For the note at the foot of section 20 substitute— "Notes 1 Section 14 provides that a restraining order may be made in respect of property or an interest in property. 2 Section 26 enables the court to make orders varying the property to which the restraining order relates.". 6 Section 26 At the foot of section 26 insert— "Note Property is defined as including any interest in property: see section 3(1).". 7 Section 27 In section 27(7)(b)(iii), after "transfer of" insert "any interest in". 8 Section 28 At the foot of section 28 insert— "Note Section 14 provides that a restraining order may be made in respect of property or an interest in property.". 9 Section 29 In section 29(2), after "deals with," insert "an interest in". 10 Section 31 At the foot of section 31 insert— "Note Property is defined as including any interest in property: see section 3(1).". 18 -- 20 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 Sch. 11 Section 36 At the foot of section 36 insert— "Note Section 14 provides that a restraining order may be made in respect of property or an interest in property.". 12 Section 37 At the foot of section 37 insert— "Note Section 14 provides that a restraining order may be made in respect of property or an interest in property.". 13 Section 38 In section 38(2), after "property" insert "or any particular interest in property". 14 Section 39 In section 39(2), after "transfer of" insert "any interest in". 15 Section 51 In section 51(5), after "to have" insert "that person's interest in". 16 Section 53 In section 53(5), after "to have" insert "that person's interest in". 17 Section 60 In section 60(2), after "transfer of" insert "any interest in". 18 Section 65 In section 65(2), after "transfer of" insert "any interest in". 19 -- 21 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 Sch. 19 Section 67 At the foot of section 67 insert— "Note Property is defined as including any interest in property: see section 3(1).". 20 Section 68 At the foot of section 68 insert— "Note Property is defined as including any interest in property: see section 3(1).". 21 Section 133A At the foot of section 133A insert— "Note Property is defined as including any interest in property: see section 3(1).". ═══════════════ 20 -- 22 of 23 -- Confiscation Amendment Act 2007 No. 42 of 2007 Endnotes ENDNOTES † Minister's second reading speech— Legislative Assembly: 8 August 2007 Legislative Council: 23 August 2007 The long title for the Bill for this Act was "A Bill for an Act to amend the Confiscation Act 1997 to clarify the operation and scope of provisions relating to exclusion orders and related appeal provisions, to make miscellaneous amendments relating to interests in property which may be subject to orders under that Act and for other purposes." 21 -- 23 of 23 --