Confiscation and Other Matters Amendment Act 2016

Confiscation and Other Matters Amendment Act 2016

No. 27 of 2016

table of provisions

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SectionPage

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of Confiscation Act1997

3Definitions—meaning of account

4Definitions—amendments relating to discharge of mortgage

5Amendment of section 7A

6Meaning of derived property—other cases

7Jurisdiction

8Application for restraining order

9Amendment of section 22

10Application may be made by telephone etc.

11Making of freezing order

12Schedule 2 offences—application for court declaration

13Automatic forfeiture of restrained property on declaration that person is serious drug offender

14Property lawfully acquired

15Effect of forfeiture

16Relief from automatic forfeiture of property of serious drug offender

17Application for pecuniary penalty order

18Application for disposal order

19Application for production order—relevant offence

20Application for production order—unexplained wealth

21What can an information notice require?

22What must the information notice contain?

23Heading to section 120A substituted

24New section 120AB inserted

25Reports to the Minister

26New section 190 inserted

Part 3—Amendment of Criminal Organisations Control Act 2012

27Definitions

28Form and content of application

29Court may make declaration

30Form of declaration

31Determination of application for revocation of declaration in respect of organisation

32Court may make control order

33Content of control orders—declared organisations

34Winding up of incorporated associations that are prohibited from operating under a control order

35Form and content of application

36Effect of registration of corresponding declaration

37Information to be kept on register

38Annual report

39New Part 7 inserted

Part 4—Amendment of Surveillance DevicesAct 1999

40Definitions

41Application of Division 3 of Part 4

42Annual reports

43New section 45 inserted

Part 5—Amendment of Open Courts Act2013

44Other laws restricting or prohibiting publication not affected

Part 6—Amendment of Criminal ProcedureAct 2009

45Schedule 3 amended

Part 7—Amendment of Sentencing Act 1991

46Sentencing guidelines

Part 8—Amendment of Family Violence Protection Amendment Act 2014

47Commencement of Act

48Repeal of Amending Act

Part 9—Repeal

49Repeal of amending Act

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Endnotes

1General information

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Victoria

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Confiscation and Other Matters Amendment Act 2016[†]

No. 27 of 2016

[Assented to 31 May 2016]

1

Confiscation and Other Matters Amendment Act 2016
No. 27 of 2016

1

Confiscation and Other Matters Amendment Act 2016
No. 27 of 2016

The Parliament of Victoriaenacts:

1

Part 9—Repeal

Confiscation and Other Matters Amendment Act 2016
No. 27 of 2016

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to amend the Confiscation Act 1997 to improve the operation of that Act as it applies to serious and organised crime; and

(b)to amend the Criminal Organisations Control Act 2012 to remove the distinction between different types of declarations made in respect of organisations; and

(c)tomake other miscellaneous amendmentstothe Surveillance Devices Act 1999, theOpen Courts Act 2013, the Criminal Procedure Act 2009, the Sentencing Act1991 and the Family Violence Protection Amendment Act 2014.

2Commencement

(1)This Part, sections 4, 5, 6, 9, 13, 14, 15, 16, 18, 26, 42 and 43 and Parts 5 to 9 come into operation on the day after the day on which this Act receives the Royal Assent.

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

(3)If a provision referred to in subsection (2) does not come into operation before 1 July 2017, it comes into operation on that day.

Part 2—Amendment of Confiscation Act1997

3Definitions—meaning of account

(1)In section 3(1) of the Confiscation Act 1997, for the definition of account substitute—

"account means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals and includes the following—

(a)a facility or arrangement for—

(i)a fixed term deposit; or

(ii)a safety deposit box;

(b)a credit card account;

(c)a loan account (other than a credit card account);

(d)an account held in the form of units in—

(i)a cash management trust; or

(ii)a trust of a kind prescribed by the regulations;".

(2)After section 3(3) of the Confiscation Act 1997 insert—

"(4)For the purposes of the definition of account in subsection (1), it is immaterial whether—

(a)an account is closed; or

(b)an account has a nil balance; or

(c)any transactions have been allowed in relation to an account.".

4Definitions—amendments relating to discharge of mortgage

(1)In section 3(1) of the Confiscation Act 1997, in the definition of tainted property—

(a) after paragraph (a)(iii) insert—

"(iiia) is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using property referred
to in subparagraph (i), (ii) or(iii);";

(b) after paragraph (b)(iii) insert—

"(iv) is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using property referred
to in subparagraph (i), (ii) or(iii);".

(2)In section 3(1) of the Confiscation Act 1997 insert the following definition—

"partly discharged, in respect of a mortgage, means a payment has been made to reduce the liability under that mortgage, whether or not the reduction in liability is recorded on a register kept by a registration authority;".

5Amendment of section 7A

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

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

(3)At the end of section 7A of the Confiscation Act1997 insert—

"(2)Without limiting subsection (1), property is derived from property of a kind referred to in subsection (1)(a) or (b) if it is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using property of a kind referred to in subsection (1)(a), (b) or (c).".

6Meaning of derived property—other cases

At the end of section 7B of the Confiscation Act1997 insert—

"(2)Without limiting subsection (1), property is derived from property of a kind referred to insubsection (1)(a) or (b) if it is, or has been, subject to a mortgage, lien, charge, security or other encumbrance wholly or partly discharged using property of a kind referred to in subsection (1)(a), (b) or (c).".

7Jurisdiction

In section 12(4) and (5) of the Confiscation Act1997omit "Schedule 1".

8Application for restraining order

For section 16(2) of the Confiscation Act 1997 substitute—

"(2)If any of the circumstances specified in subsection (2AA) apply in relation to property—

(a)the DPP, a prescribed person or a person belonging to a prescribed class of persons may apply, without notice, to any court; or

(b) an appropriate officer may apply, without notice, to the Magistrates' Court or the Children's Court—

for a restraining order in respect of the property.

(2AA)An application for a restraining order under subsection (2) may be made in respect of property if—

(a)a police officer or a person authorised by or under an Act to prosecute the relevant type of offence believes that—

(i)within the next 48 hours a person will be charged with a Schedule 2 offence; and

(ii)that person has an interest in the property or the property is tainted property in relation to that offence; or

(b)a person has been charged with a Schedule 2 offence and that person hasan interest in the property or the property is tainted property in relation to that offence; or

(c)a person has been convicted of a Schedule 2 offence and that person hasan interest in the property or the property is tainted property in relation to that offence.".

9Amendment of section 22

(1)In the heading to section 22 of the Confiscation Act 1997, for "—automatic forfeiture" substitute "in relation to Schedule 2 offence".

(2)In section 22(1) of the Confiscation Act 1997, after "automatic forfeiture" insert "under section35".

(3)At the foot of section 22 of the Confiscation Act1997 insert—

"Note

Property excluded from a restraining order made for the purpose of satisfying automatic forfeiture of property thatmay occur under Division 2 of Part 3 (i.e. automatic forfeiture on the conviction of an accused of certain offences) may continue to be restrained if a restraining orderhas also been made in relation to the property for thepurpose referred to in section 15(1)(c).".

10Application may be made by telephone etc.

In section 31E of the Confiscation Act 1997, for"If it is impracticable for the applicant for a freezing order to apply in person, the applicant" substitute "An authorised police officer".

11Making of freezing order

Section 31F(1)(c), (1A)(c) and (1B)(c) of the Confiscation Act 1997 are repealed.

12Schedule 2 offences—application for court declaration

(1)After section 35A(1) of the Confiscation Act1997 insert—

"(1A)Subject to subsection (2), if an accused is convicted of an offence by the Magistrates' Court or the Children's Court, an appropriate officer may apply to that court for a declaration that the offence was a Schedule 2 offence.".

(2)In section 35A(2) of the Confiscation Act 1997, after "subsection (1)" insert "or (1A)".

13Automatic forfeiture of restrained property on declaration that person is serious drug offender

(1)In section 36GA(2) of the Confiscation Act1997—

(a)for"under section 20 for an exclusion order" substitute "for an exclusion order under section22A";

(b)for paragraph (b) substitute—

"(b)the making of the declaration under section 89DI of the Sentencing Act1991."

(2) In section 36GA(3) of the Confiscation
Act 1997, for "under section 20 for an exclusion order" substitute "for an exclusion order under section22A".

(3) In section 36GA(4) of the Confiscation
Act 1997, for "under section 20" substitute "foran exclusion order under section22A".

14Property lawfully acquired

For section 40G(1)(f) of the Confiscation Act1997 substitute—

"(f)property acquired by a person, whether or not it is acquired for sufficient consideration, is not property lawfully acquired if the person acquired the property knowing, or in circumstances such as to arouse a reasonable suspicion, that the property was derived or realised, or substantially derived or realised, directly or indirectly, from any unlawful activity;

(g)property acquired by a person that is or has been subject to a mortgage, lien, charge, security or other encumbrance is not property lawfully acquired if that mortgage, lien, charge, security or other encumbrance has been wholly or partly discharged using property that was not lawfully acquired.".

15Effect of forfeiture

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

"(2A)Despite subsection (2), property that vests inthe Minister under that subsection is not subject to any mortgage, charge or encumbrance created by an interstate restraining order.".

(2)After section 41(4) of the Confiscation Act 1997 insert—

"(5)Section 73(2) of the Personal Property Securities Act 2009 of the Commonwealth applies to any property forfeited to the Minister under this section to the extent, if any, to which that Act applies in relation to the property.".

16Relief from automatic forfeiture of property of serious drug offender

In section 45A(7) of the Confiscation Act 1997—

(a)in the definition of dependant, in paragraph(b)(ii), for "frailty." substitute "frailty;";

(b)after the definition of dependant insert—

"proceeds of sale means the proceeds of the sale of the property after all mortgages and charges to which the property is subject have been discharged.".

17Application for pecuniary penalty order

For section 58(1) of the Confiscation Act 1997 substitute—

"(1)If an accused is convicted of a Schedule 2 offence—

(a)the DPP may apply to the Supreme Court or the court before which the accused was convicted of the offence; or

(b)where the accused was convicted of theoffence before the Magistrates' Court or the Children's Court, an appropriate officer may apply to that court—

for a pecuniary penalty order.".

18Application for disposal order

After section 77(1)(c) of the Confiscation Act1997 insert—

"(ca)child pornography within the meaning of section 67A of the Crimes Act 1958 and including any of the following—

(i) a thing containing child pornography;

(ii)an electronic device or data storage device containing data from which can be generated text, images or sounds that are child pornography;

Examples

A computer, mobile phone, USB stick, memory card or hard drive.

(iii) all of the data contained in a device referred to in subparagraph (ii); or".

19Application for production order—relevant offence

(1)After section 100(3) of the Confiscation Act 1997 insert—

"(3A)An application under subsection (2) may be made in person or by telephone, facsimile or other form of electronic communication.".

(2)For section 100(5) of the Confiscation Act 1997 substitute—

"(5)An application under subsection (2) must be heard—

(a)out of court; or

(b)in closed court.".

20Application for production order—unexplained wealth

(1)For section 100A(1) of the Confiscation Act 1997 substitute—

"(1)A police officer may, without notice, apply for a production order against a person, or anyone else, if—

(a)the person is suspected of having engaged in serious criminal activity; or

(b)the person is suspected of having an interest in property that was not lawfully acquired.".

(2) After section 100A(2) of the Confiscation Act1997 insert—

"(2A) An application under subsection (1) may be made in person or by telephone, facsimile or other form of electronic communication.".

(3) For section 100A(4) of the Confiscation Act 1997 substitute—

"(4) An application under subsection (1) must be heard—

(a)out of court; or

(b)in closed court.".

21What can an information notice require?

In section 118G(1) of the Confiscation Act1997—

(a)in paragraph (a), for "believed to be held" substitute "believed to be or to have been held";

(b)in paragraphs (a)(i) and (ii), for "is held" substitute "is or was held";

(c)in paragraph (b)(i), for "is held" substitute "is or was held";

(d)for paragraph (b)(ii) substitute—

"(ii)if still held with the financial institution, the balance of that account.".

22What must the information notice contain?

In section 118H(2)(d) of the Confiscation Act1997, for "believed to be held" (where twice occurring) substitute "believed to be or to have been held".

23Heading to section 120A substituted

For the heading to section 120A of the Confiscation Act 1997 substitute—

"Document request relating to maintenance and management of property".

24New section 120AB inserted

After section 120A of the Confiscation Act 1997 insert—

"120AB Document request relating to enforcement of pecuniary penalty order

(1)A prescribed person may request any person whom the prescribed person believes has possession or control of documents required for the enforcement of a pecuniary penalty order to produce those documents to the prescribed person.

(2)A request under subsection (1) may be made only if the person making the request reasonably believes that—

(a)a pecuniary penalty order has been made against an accused in relation to a Schedule 1 offence or a Schedule 2 offence; and

(b)the production of the documents is necessary to enforce that pecuniary penalty order.".

25Reports to the Minister

In section 139A(2)(f) of the Confiscation Act1997, after "section 120A" insert "or120AB".

26New section 190 inserted

After section 189 of the Confiscation Act 1997 insert—

"190 Transitional—Confiscation and Other Matters Amendment Act 2016

(1)In this section—

the 2016 Act means the Confiscation and Other Matters Amendment Act 2016;

amended provision relating to property obtained with a loan means—

(a)the definition of tainted property in section 3(1) as amended by section 4(1) of the 2016 Act; or

(b)section 7A as amended by section5(3) of the 2016 Act; or

(c)section 7B as amended by section6 of the 2016 Act; or

(d)section 40G(1) as amended by section 14 of the 2016 Act—

and as construed by reference to the definition of partly discharged as inserted by section 4(2) of the 2016 Act;

relevant section of the 2016 Act, in relation to an amended provision relating to property obtained with a loan, means the section of the 2016 Act that amended that provision.

(2)An amended provision relating to property obtained with a loan applies with respect to any proceeding under this Act commenced before, on or after the date on which the relevant section of the 2016 Act comes into operation irrespective of—

(a)when the property to which the amended provision applies was purchased; or

(b)when the mortgage, lien, charge, security or other encumbrance to which that property is, or has been, subject was wholly or partly discharged.".

Part 3—Amendment of Criminal Organisations Control Act 2012

27Definitions

In section 3(1) of the Criminal Organisations Control Act 2012, the definitions of prohibitive declaration and restrictive declaration are repealed.

28Form and content of application

Section 15(1A) of the Criminal Organisations Control Act 2012 is repealed.

29Court may make declaration

(1)Section 19(2) of the Criminal Organisations Control Act 2012 is repealed.

(2)In section 19(2A) of the Criminal Organisations Control Act 2012omit "(a restrictive declaration)".

(3)In section 19(2B) of the Criminal Organisations Control Act 2012 omit "(2)(a) and".

(4)In section 19(2C) of the Criminal Organisations Control Act 2012, for "a prohibitive declaration or a restrictive declaration" substitute "a declaration under subsection (1)(a)".

(5)In section 19(4) and (7) of the Criminal Organisations Control Act 2012 omit "(2),".

30Form of declaration

Section 22(ab) of the Criminal Organisations Control Act 2012 is repealed.

31Determination of application for revocation of declaration in respect of organisation

(1)Section 29(2) and (4) of the Criminal Organisations Control Act 2012 are repealed.

(2)In section 29(3) and (5) of the Criminal Organisations Control Act 2012 omit "restrictive".

32Court may make control order

(1)For section 43(1) of the Criminal Organisations Control Act 2012 substitute—

"(1)The Court may make a control order that applies to an organisation if—

(a)the organisation is a declared organisation; and

(b)the Court is satisfied that in order to end, prevent or reduce a serious threat to public safety and order it is necessary or desirable to restrict, or to impose conditions on, the activities of—

(i)the organisation; or

(ii)any members, former members or prospective members of the organisation.".

(2)For section 43(2)(b) of the Criminal Organisations Control Act 2012 substitute—

"(b)it is necessary or desirable to restrict, or to impose conditions on, the activities of the individual in order to end, prevent or reduce a serious threat to public safety and order.".

(3)Section 43(3) of the Criminal Organisations Control Act 2012 is repealed.

33Content of control orders—declared organisations

(1)Before section 45(2)(b) of the Criminal Organisations Control Act 2012 insert—

"(a)prohibit the organisation from doing any of the following—

(i) continuing to operate;

(ii) carrying on business;

(iii) taking on new members;".

(2)Section 45(2A) of the Criminal Organisations Control Act 2012 is repealed.

34Winding up of incorporated associations that are prohibited from operating under a control order

In section 46(1) of the Criminal Organisations Control Act 2012, for "45(2A)(a)" substitute "45(2)(a)".

35Form and content of application

For section 57(3) of the Criminal Organisations Control Act 2012 substitute—

"(3)An application must be served on the respondent as soon as practicable after the application is made.

Note

For service, see Division 2 of Part 6.".

36Effect of registration of corresponding declaration

In section 96 of the Criminal Organisations Control Act 2012 omit "restrictive".

37Information to be kept on register

Section 131(1)(ba) of the Criminal Organisations Control Act 2012 is repealed.

38Annual report

(1)For section 133(1)(c) of the Criminal Organisations Control Act 2012 substitute—

"(c)the number of declarations applying to declared organisations that were in effect on the last day of that financial year;".

(2)Section 133(1)(ca) of the Criminal Organisations Control Act 2012 is repealed.

39New Part 7 inserted

After Part 6 of the Criminal Organisations Control Act 2012 insert—

"Part 7—Transitional provisions

139Confiscation and Other Matters Amendment Act 2016

Despite section 45(2)(a), the Court must notimpose a condition referred to in that provision in making a control order that applies to a declared organisation that is the subject of a restrictive declaration made under section 19(2A) as in force immediately before the commencement of Part 3 of the Confiscation and Other Matters Amendment Act 2016.".

Part 4—Amendment of Surveillance DevicesAct 1999

40Definitions

(1)In section 3(1) of the Surveillance Devices Act1999—

(a) in the definition of chief officer, for paragraph (d) substitute—

"(c)in relation to the Department of Environment, Land, Water and Planning—the Secretary to that department;

(d)in relation to the Department of Economic Development, Jobs, Transport and Resources—the Secretary to that department;";

(b) in the definition of law enforcement agency, for paragraph (d) substitute—

"(c)the Department of Environment, Land, Water and Planning;

(d)the Department of Economic Development, Jobs, Transport and Resources;";

(c) in the definition of law enforcement officer, for paragraph (d) substitute—

"(c) in relation to the Department of Environment, Land, Water and Planning—

(i)an employee of that department appointed as an authorised officerunder section 83 of the Conservation, Forests and Lands Act 1987; or

(ii)a person who is seconded to that department, including (but not limited to) a member of the police force or police service (however described) of another jurisdiction;

(d) in relation to the Department of Economic Development, Jobs, Transport and Resources—

(i)an employee of that department appointed as an authorised officer under section 83 of the Conservation, Forests and Lands Act 1987; or

(ii)a person who is seconded to that department, including (but not limited to) a member of the police force or police service (however described) of another jurisdiction;";

(d) in the definition of senior officer, for paragraph (d) substitute—

"(c)in relation to the Department of Environment, Land, Water and Planning—the Secretary to that department;

(d)in relation to the Department of Economic Development, Jobs, Transport and Resources—the Secretary to that department;".