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Confiscation (Amendment) Bill
Victorian Legislation and Parliamentary Documents
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EXPLANATORY MEMORANDUM
PART 1--PRELIMINARY
Part 1 contains preliminary matters.
Clause 1 sets out the main purpose of the Act, which is to make various
amendments to the Confiscation Act 1997.
Clause 2 provides that the Act comes into operation on a day or days to be
proclaimed, but no later than 1 December 2003.
Clause 3 provides that, for the purposes of the Act, the Principal Act is the
Confiscation Act 1997.
PART 2--AMENDMENTS TO THE PRINCIPAL ACT
Part 2 contains amendments to the Principal Act.
Clause 4 amends section 3 of the Principal Act.
Clause 4(1) substitutes a new definition of "automatic forfeiture
offence" for the definition in section 3 of the Principal Act.
The Principal Act currently provides that "automatic forfeiture
offence" means an offence referred to in Schedule 2 and, in
Parts 11, 13 and 14, includes an interstate offence.
The new definition provides that an "automatic forfeiture
offence" means an offence referred to in Schedule 2 and, in
Parts 11, 13 and 14, includes an interstate offence.
However, the new definition also provides that if circumstances
are specified in Schedule 2 in relation to an offence, "automatic
forfeiture offence" means an offence committed in those
circumstances.
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For example, clause 37 inserts a new item 1(ad) in Schedule 2.
This item is the offence of trafficking in a drug of dependence,
where--
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· the drug of dependence is a drug specified in Part 3 of
Schedule Eleven to the Drugs, Poisons and Controlled
Substances Act 1981; and
· the quantity of the drug of dependence trafficked is not
less than the automatic forfeiture quantity specified in
column 2B of Part 3 of Schedule Eleven to that Act
applicable to that drug.
For the purposes of the definition of "automatic forfeiture
offence" in relation to the offence of trafficking in a drug of
dependence, the "circumstances" are that the quantity of the drug
trafficked is not less than the "automatic forfeiture quantity"
applicable to that drug as specified in Column 2B of Part 3 of
Schedule Eleven to the Drugs, Poisons and Controlled
Substances Act 1981. If the offence of trafficking in a drug of
dependence was not committed in those circumstances, it is not
an "automatic forfeiture offence" within the meaning of the
Principal Act and automatic forfeiture does not apply.
Forfeiture provisions would apply in those circumstances.
The new definition of "automatic forfeiture offence" is also
relevant to clause 13, which inserts new sections 35A to 35C in
the Principal Act. These new provisions enable the court which
convicts a defendant of an offence to make a declaration that the
offence was an "automatic forfeiture offence". For example, if a
person is convicted of trafficking in a drug of dependence, the
court may declare that the offence was an "automatic forfeiture
offence" if it is satisfied that the offence was committed in
circumstances involving not less than an automatic forfeiture
quantity of the relevant drug of dependence.
Clause 4(2) amends the definition of "financial institution" in
section 3 of the Principal Act, by adding to the list of entities
which fall within the definition--
· a casino operator within the meaning of the Casino
Control Act 1991; and
· the holder of the wagering licence under Part 2 of the
Gaming and Betting Act 1994.
Clause 4(3) amends the definition of "law enforcement agency"
in section 3 of the Principal Act by adding to the list of entities
which fall within the definition any other authority or person
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responsible for the performance of functions or activities under
the Principal Act directed to--
·
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the management of seized or restrained property; or
· the enforcement of the Principal Act or an order made
under the Principal Act.
This is intended to refer to the Asset Confiscation Office, a
business unit in the Department of Justice. The definition does
not name the Asset Confiscation Office as it is not established
pursuant to statute. The amended definition does not include a
trustee within the meaning of the Principal Act.
The amended definition is also relevant to new section 119A of
the Principal Act (inserted by clause 30), concerning the sharing
of information between law enforcement agencies.
Clause 4(4) amends the definition of "premises" in section 3
of the Principal Act to specifically exclude a public place.
This definition is relevant to the issuing of warrants under Part 11
and new Part 11A of the Principal Act.
It is primarily intended to clarify that--
· a search warrant issued under section 79 of the Principal
Act in respect of premises cannot authorise a member of
the police force to seize tainted or forfeited property
from a public place; and
· a seizure warrant issued under new section 79A of the
Principal Act authorises a member of the police force to
seize tainted or forfeited property from a public place.
Clause 4(5) amends the definition of "tainted property" in
section 3 of the Principal Act to clarify the operation of the
definition in relation to the offences in section 122 (money
laundering) and 123(1) (possession, etc. of property suspected of
being proceeds of crime). The amended definition provides that,
in relation to an offence under section 122 and section 123(1),
"tainted property" means property referred to in sections 122(2)
and 123(1) respectively.
Clause 5 Sub-clause (1) inserts the following new definitions in section 3
of the Principal Act.
The new definition of "automatic forfeiture quantity" has the
same meaning as it has in the Drugs, Poisons and Controlled
Substances Act 1981 (see clauses 45 and 49 of the Bill).
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The new definition of "document request" means a request for
documents made under new Division 6 of Part 13 (see clause 31)
in relation to property for which the Secretary to the Department
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of Justice has responsibility under a memorandum of
understanding entered into under new section 78A (see
clause 18).
The new definition of "freezing order" refers to an order made
under new section 31F of the Principal Act by the Magistrates'
Court to freeze an account held with a financial institution (see
clause 10).
The new definition of "information notice" refers to a notice
issued under new section 118D or 118E of the Principal Act
(see clause 29).
The new definition of "occupier" means, for the purposes of new
Part 11A of the Principal Act (see clause 27), a person who
appears to be an occupier of or to be in charge of the premises
and to be aged 18 or more.
The new definition of "Secretary" refers to the Secretary to the
Department of Justice. This new definition is relevant to--
· the new definition of "document request" (see
clause 5(1));
· the new Part 10A (see clause 18);
· the new Division 6 of Part 13 (see clause 31);
· the new section 139A(2)(f) (see clause 32); and
· the new section 143A (see clause 34)--
of the Principal Act.
Clause 5(2) inserts a new section 3(2) in the Principal Act, which
provides that if the name of the Department of Justice is changed
under the Public Sector Management and Employment Act
1998, the reference to that Department in the definition of
"Secretary" must be treated as a reference to the Department by
its new name, consequential on the insertion of the definition of
"Secretary".
The new definition of "seizure warrant" refers to a warrant to
seize tainted or forfeited property from a public place issued
under new section 79A of the Principal Act (see clause 19).
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Clause 6 amends section 12 of the Principal Act, to provide that the
Magistrates' Court has jurisdiction to make a freezing order
(see clause 10) in respect of an account held with a financial
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institution, irrespective of the amount of money held in the
account.
Clause 7 amends section 12(6) of the Principal Act. The effect of the
amendment is to give the County Court as well as the Supreme
Court jurisdiction where a person is convicted before the
Magistrates' Court or the Children's Court, and that court does
not have jurisdiction to make a restraining order, forfeiture order
or pecuniary penalty order because of the value of the property or
the amount payable.
Clause 8 inserts new sections 19A to 19E in the Principal Act concerning
declarations of property interests.
New section 19A provides that where a court makes a restraining
order, a member of the police force must give a notice to every
person who the member believes has an interest in the restrained
property. The purpose of the notice is to inform each person
believed to have an interest in the restrained property that he or
she must make a written declaration of property interests under
new section 19B.
The notice must be in the prescribed form and must state the
effect of new section 19C.
New section 19B provides that every person who is given a
notice under new section 19A must make a written declaration of
property interests in the restrained property. The declaration
must state whether the person--
· has an interest in the restrained property; and
· believes that any other person has an interest in the
restrained property.
If the person making the declaration believes that another person
does have an interest in the restrained property, the person
making the declaration must include in the declaration the name
of every such person.
The purpose of the declaration of property interests under new
section 19B is to give police (and the Asset Confiscation Office
in the Department of Justice, if it is managing the property) as
much information as possible at an early stage about third party
interests in restrained property. When a person makes a
declaration stating the name of another person who is believed to
have an interest in restrained property, notice of the restraining
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order must be given to the named person under section 19 of the
Principal Act.
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New section 19C provides that it is an offence under new
section 19C, punishable by a maximum penalty of a level 9 fine
(60 penalty units--$6000), to--
· fail without reasonable excuse to make a declaration of
property interests within 14 days; or
· make a statement in a declaration that is false or
misleading in a material particular.
New section 19D sets out additional consequences of not
providing the information that must be provided in a declaration
of property interests.
New section 19D(1) provides that if a person is convicted of an
offence under new section 19C(1) or (2) and has not yet provided
the information that should have been provided in a declaration
of property interests, the court which convicts the person of that
offence must direct the person to provide the relevant information
to the court.
New section 19D(2) provides that if a person is convicted of the
forfeiture offence on which the restraining order was based, and
has not yet provided the information that should have been
provided in a declaration of property interests, the court which
convicts the person of the forfeiture offence must direct the
person to provide the relevant information to the court.
This provision does not apply where the person has a reasonable
excuse for failing to provide the information.
New section 19E provides that a statement made by a person in a
declaration of property interests is not admissible in evidence
against that person, other than in--
· a proceeding under new section 19C(2) for making a
false or misleading statement in the declaration; or
· any proceeding under the Principal Act (except a
criminal proceeding in relation to an offence against
section 122 (money laundering) or 123 (possession of
property suspected of being proceeds of crime) of the
Principal Act).
Clause 9 amends section 26(5) of the Principal Act, which sets out
examples of further orders which a court may make when it
makes a restraining order or at any later time.
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Section 14(3) of the Principal Act provides that if the court
makes a restraining order it may direct a trustee to take control of
some or all of the property specified in the order. Clause 9(1)
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inserts a new paragraph (ga) in section 26(5) of the Principal Act,
which provides that if the court did not direct a trustee to take
control of restrained property at the time of making a restraining
order, it may do so at any later time under section 26.
Clause 9(2) inserts new paragraphs (i) and (j) in section 26(5) of
the Principal Act. New paragraph (i) allows the court to make a
further order directing a person who has an interest in the
restrained property to use or manage restrained property, subject
to any conditions specified in the order. For example, the court
could make an order allowing the defendant's business partner to
manage a restrained business.
New paragraph (j) allows the court to make a further order
directing a person prescribed for the purposes of section
26(2)(da) (the Director and staff of the Asset Confiscation Office
in the Department of Justice have been prescribed under this
section) to do any activity specified in the further order that is
reasonably necessary for the purpose of managing restrained
property. For example, the court could direct the Director of the
Asset Confiscation Office to carry out repairs on, or to receive
rental payments in relation to, restrained premises.
Clause 10 inserts a new Part 2A in the Principal Act to provide for freezing
orders. A freezing order is an order made by the Magistrates'
Court directing a financial institution not to allow withdrawals to
be made from a specified account held with that institution.
New section 31A provides that, for the purposes of Part 2A,
"authorised member of the police force" means a person
authorised under new section 31B or a person belonging to a
class authorised under new section 31B.
New section 31B allows the Chief Commissioner of Police to
authorise in writing a member or class of member of the police
force to apply for a freezing order under new Part 2A.
New section 31C(1) provides that a freezing order is an order
directing a financial institution not to allow withdrawals to be
made from a specified account except in the manner and
circumstances specified in the order. For example, the
Magistrates' Court could specify in a freezing order that a joint
account holder be allowed to make withdrawals up to a specified
amount from the account in respect of which the freezing order is
made, for the purposes of meeting reasonable living expenses
during the operation of the freezing order.
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New section 31C(2) provides that it is irrelevant whether money
is deposited into the frozen account after the freezing order takes
effect. The effect of this provision is that if a freezing order is
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made in respect of an account, and money is deposited into the
account after the order is made, the order also applies to the
additional deposited money.
New section 31C(3) allows a financial institution to make
withdrawals from an account in respect of which a freezing order
has been made, in order to meet a liability imposed on the
financial institution by any State or Commonwealth law in
connection with that account.
For example, new section 31C(3) would allow the financial
institution to make withdrawals from the account for the purpose
of meeting a liability under the Debits Tax Act 1990, however it
would not enable withdrawals to be made to pay account-keeping
fees and charges, or to pay a bill under a direct debit payment
arrangement.
New section 31D(1) sets out the grounds on which an authorised
member of the police force may apply for a freezing order.
New section 31D(2) provides that, subject to new sections 31D
and 31E, an application for a freezing order must be supported by
an affidavit setting out the grounds on which the freezing order is
sought, the name or names in which the account is held, the
financial institution with which the account is held and the
account number or another description which is sufficient to
identify the account.
New section 31D(3) allows an authorised member of the police
force to apply for a freezing order before an affidavit is prepared
or sworn, where the applicant believes that it is impracticable to
prepare and swear an affidavit before the application is made.
For example, the applicant may believe on reasonable grounds
that the account holder has committed a forfeiture offence and is
about to withdraw a large amount of money from the account.
However, where application is made without an affidavit, new
section 31F(1)(b)(i) provides that, before making a freezing
order, the Magistrates' Court must be satisfied that there are
sufficiently urgent circumstances to justify making the
application without an affidavit.
New section 31D(4) provides that if application for a freezing
order is made without an affidavit, the applicant must provide as
much information as the Magistrates' Court considers to be
reasonably practicable in the circumstances, and send a duly
sworn affidavit to the Court the following day.
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New section 31D(5) allows the Magistrates' Court to order that
an application for a freezing order be heard in closed court, if the
Court considers that this is necessary in order not to prejudice a
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police investigation. This power is in addition to the Court's
powers in section 126 of the Magistrates' Court Act 1989 to
close proceedings for various reasons (for example, in order not
to prejudice the administration of justice or endanger the physical
safety of any person).
New section 31E allows an application for a freezing order to be
made by telephone, fax or other form of communication, if the
applicant believes that it is impracticable to apply in person.
If application is not made in person, the applicant must send the
original duly sworn affidavit to the Magistrates' Court the
following day.
New section 31F(1) sets out the matters in respect of which the
Magistrates' Court must be satisfied before making a freezing
order. These matters include the Court being satisfied, where an
application has been made without an affidavit, that there are
sufficiently urgent circumstances to justify doing so.
New section 31F(2) requires the Magistrates' Court to consider
the following matters in determining whether a freezing order
should be made--
· the amount of money in the account to be frozen;
· whether the account is held in the name of more than
one person; and
· any hardship that may reasonably be caused to any
person by the order.
For example, if the Magistrates' Court considered that a freezing
order would cause hardship to the spouse or domestic partner and
children of a person suspected of having committed a forfeiture
offence, the Court may not consider it appropriate to make a
freezing order, or may impose conditions in the order to ensure
that hardship is not caused by the order.
New sections 31F(3), (4), (5) and (6) set out further procedural
requirements in relation to the making of freezing orders.
New section 31G sets out requirements in relation to the manner
in which notice of a freezing order is given to a financial
institution.
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If the Magistrates' Court makes a freezing order and gives a copy
of the order to the applicant in writing or by fax, a member of the
police force must give to the relevant financial institution a copy
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of the freezing order and a notice in a prescribed form setting out
certain matters to assist the financial institution to comply with
the freezing order (new section 31G(1)).
If the Magistrates' Court makes a freezing order and does not
give a copy of the order to the applicant at the time the order is
made (for example, if the application was made and granted by
telephone in urgent circumstances), a member of the police force
must give to the relevant financial institution a notice in a
prescribed form setting out the details of the freezing order and
other matters to assist the financial institution to comply with the
order (new section 31G(2)).
New section 31G(3) provides that notice of a freezing order must
not be given to a financial institution more than 72 hours after the
freezing order is made. The effect of this provision is that if
police do not give notice of a freezing order to the financial
institution within 72 hours after the order is made, the order
cannot be given.
New section 31H provides that, subject to new section 31I, a
freezing order--
· takes effect only when notice of it is given to the
relevant financial institution (see new section 31G); and
· ceases to be in force on the earlier of the following
events--
· when a restraining order is made in respect of the
money in the account; or
· 72 hours after the freezing order takes effect.
New section 31I(1) provides that the authorised member of the
police force who applied for the freezing order may apply for an
extension of the order.
New section 31I(2) provides that, before extending a freezing
order, the Magistrates' Court must be satisfied that an application
for a restraining order has been made in respect of the money in
the frozen account, and that the restraining order application has
not yet been determined. In considering whether or not to extend
a freezing order, the Magistrates' Court must have regard to the
matters set out in new section 31F(2).
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If a freezing order is extended, it ceases to be in force--
· when a restraining order is made in respect of the
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money in the account; or
· if a restraining order is not made in respect of the
money in the account, when the financial institution is
given notice that the freezing order has ceased to have
effect (new section 31I(7)).
If a freezing order is extended, the person who applied for the
extension must, within 6 hours after the order is extended, inform
the relevant financial institution in writing that the freezing order
has been extended, and that the extended order will cease to be in
force when a restraining order is made or, if a restraining order is
not made, when the financial institution is given notice that the
freezing order has ceased to be in force (new sections 31I(3)
and (4)).
If a restraining order is not subsequently made in respect of the
money in the account, the person who applied for the extension
must, as soon as practicable but not more than 6 hours after the
application for the restraining order is determined, inform the
financial institution in writing that the freezing order has ceased
to be in force (new sections 31I(5) and (6)).
New section 31J requires a person who applied for a freezing
order to give a report in writing about the freezing order to the
registrar of the Magistrates' Court--
· within 7 days after the freezing order ceases to be in
force; or
· if notice of the freezing order was not given to the
financial institution, within 7 days after the freezing
order was made.
New section 31K provides that a financial institution that has
been given notice of a freezing order must not fail, without
reasonable excuse, to comply with the order. The maximum
penalty for this offence is a level 5 fine (1200 penalty units--
$120 000). This is a summary offence.
New section 31L sets out secrecy provisions in relation to
freezing orders.
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While a freezing order is in force, it is an offence for a financial
institution to disclose the existence or operation of the freezing
order to any person other than--
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· a member of the police force;
· an officer or agent of the financial institution, for the
purpose of ensuring that the freezing order is complied
with;
· a legal practitioner acting for the financial institution,
for the purpose of obtaining legal advice or
representation in relation to the freezing order; or
· an account holder or a person who has an interest in the
frozen account (new section 31L(1)).
The maximum penalty for this offence is a level 5 fine
(1200 penalty units--$120 000). This is a summary offence.
While a freezing order is in force, it is also an offence for a
person to whom the existence or operation of a freezing order is
disclosed (other than an account holder or a person who has an
interest in the account) to disclose the existence or operation of a
freezing order except in the circumstances, to the people and for
the purposes specified in new section 31L(2).
The maximum penalty for this offence is level 7 imprisonment
(2 years) or a level 7 fine (240 penalty units--$24 000) or both.
This is a summary offence.
New section 31M provides that if a financial institution is or has
been given notice of a freezing order, the fact that the freezing
order has been made must be disregarded for the purposes of the
application of section 122 of the Principal Act in relation to the
institution. Section 122 contains the offence of money
laundering.
Clause 11 amends section 32(4)(a) of the Principal Act. Section 32(4)
provides that an applicant for a forfeiture order must give written
notice of the application to the defendant and to any other person
whom the applicant has reason to believe has an interest in the
property. The effect of the amendments in clause 11 is to provide
that an applicant for a forfeiture order need not give written
notice of the application to the defendant if he or she has
absconded. Section 5 of the Principal Act sets out the
circumstances in which a person is deemed to have absconded.
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Clause 12 inserts a new Division 1A in Part 3 of the Principal Act, to
provide for tainted property substitution declarations. A tainted
property substitution declaration is a declaration made by a court
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which has the effect of substituting property in which the
defendant has an interest which is not tainted property, for
tainted property which is not otherwise available for forfeiture.
"Tainted property" is defined in section 3 of the Principal Act.
New section 34A provides that, for the purposes of new
Division 1A--
· property is "not available for forfeiture" if the defendant
does not have an interest in the property; and
· an "applicant" is a person who may apply for a
forfeiture order or a restraining order for the purposes of
forfeiture (this includes the Director of Public
Prosecutions and the Chief Commissioner of Police).
New section 34B deals with applications for tainted property
substitution declarations. Application may be made to any court
(new section 34B(1)) and must be made following conviction, in
conjunction with an application for a forfeiture order (new
section 34B(2)). New section 34B(2) also sets out the matters
which must be included in an application.
New section 34C sets out the basis upon which the court may
make a tainted property substitution declaration. The court may
make such a declaration if it is satisfied that--
· the defendant used or intended to use property in or in
connection with the commission of the forfeiture
offence, which is not available for forfeiture; and
· the property to be substituted is property in which the
defendant had an interest at the time that the forfeiture
offence was committed and which is of the same nature
or description as the property which is not available for
forfeiture (new section 34C(1)).
The property which is not available for forfeiture and the
property which is to be substituted need not be of the same value
(new section 34C(3)). For example, the court could make a
tainted property substitution declaration which substitutes a
family car for a sports car.
The effect of a tainted property substitution declaration is that
property is substituted for tainted property which is not available
for forfeiture and is deemed to be tainted property for the
purposes of the Principal Act. This means that the substituted
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property becomes available for forfeiture and application may
then be made for forfeiture of that property.
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Application may also be made for a restraining order in respect of
property which is to be substituted, for the purposes of satisfying
a forfeiture order (see section 15(1)(a) of the Principal Act).
This is because the property which is to be substituted is property
in which the defendant has an interest and for which application
will be made for forfeiture (following a tainted property
substitution declaration by a court).
Clause 13 inserts new sections 35A, 35B and 35C, which enable the court
which convicts a defendant of an offence to make a declaration
that the offence was an "automatic forfeiture offence" (see new
definition inserted by clause 4(1)).
For example, if a person is convicted of trafficking in a drug of
dependence, the court may declare that the offence was an
"automatic forfeiture offence", if it is satisfied that the offence
was committed in circumstances involving not less than an
automatic forfeiture quantity of the relevant drug of dependence
(see new item 1(ad) of Schedule 2 inserted by clause 37).
Clause 14 amends section 36 of the Principal Act to provide that an
applicant for a declaration that property has been forfeited
(following automatic forfeiture) is not required to give notice of
the application to any person who has an interest in the property.
Clause 15 amends section 37(3) of the Principal Act to clarify that
application for a civil forfeiture order may be made within 7 days
after a restraining order is made for the purposes of civil
forfeiture.
Clause 16 amends section 77(1) of the Principal Act to provide that, if a
person has been convicted of a forfeiture offence, the DPP or an
appropriate officer may apply for a disposal order in respect of
property that is of negligible value or not fit for use (in addition
to the other types of property in respect of which application may
be made under section 77(1)).
Clause 17 amends section 78 of the Principal Act to set out the matters in
respect of which the court must be satisfied before making a
disposal order in relation to property that is of negligible value or
not fit for use. These matters include the court being satisfied
that no person with an interest in the property (other than the
defendant) would be likely to object to its disposal.
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Clause 18 inserts a new Part 10A in the Principal Act, in relation to property
management.
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New section 78A allows the Secretary to the Department of
Justice and a law enforcement agency (for example, the police
force of Victoria) to enter into a memorandum of understanding
that provides for the transfer to the Secretary of responsibilities
and powers for seized and restrained property. The purpose of
this provision is to enable seized and restrained property to be
effectively managed by the Asset Confiscation Office in the
Department of Justice for the purposes of the Principal Act.
A memorandum of understanding may refer to specified
property, a specified class of property or property of a specified
person. A specified class of property could include, for example,
all property seized under a warrant issued under section 465 of
the Crimes Act 1958 or all real property restrained under the
Principal Act for the purposes of automatic forfeiture.
New section 78B enables the Secretary to the Department of
Justice to issue a certificate stating that the Secretary has
responsibility for property by virtue of a memorandum of
understanding. Such a certificate is admissible in evidence in any
proceedings (see new Division 6 of Part 13, concerning
document requests).
Clause 19 inserts a new section 79A in the Principal Act, which provides
for the issuing of a "seizure warrant" to seize tainted or forfeited
property from a public place.
Clause 20 contains consequential amendments to sections 80, 81, 82 and 84
of the Principal Act as a result of providing for the issuing of
seizure warrants (see new section 79A).
Clause 21 inserts a new section 84A in the Principal Act, which provides
that a member of the police force executing a seizure warrant
must show a copy of the warrant to any person present during the
execution of the warrant who has an interest in, or is in charge of,
the property being seized.
Clause 22 contains consequential amendments to sections 86 and 88 of the
Principal Act as a result of providing for the issuing of seizure
warrants (see new section 79A).
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Clause 23 inserts a new section 88A in the Principal Act, which provides
that a member of the police force who applies for a seizure
warrant must give notice of the execution of that warrant to
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every person known to have an interest in the seized property.
Notice must be given as soon as practicable (but not more than
7 days) after the warrant is executed.
Clause 24 contains consequential amendments to sections 89, 90, 91 and 95
of the Principal Act as a result of providing for the issuing of
seizure warrants (see new section 79A).
Clause 25 inserts new sections 95A to 95E in the Principal Act.
These provisions enable the Magistrates' Court to make a
declaration authorising property seized under an evidentiary
search warrant under section 465 of the Crimes Act 1958 or
section 81 of the Drugs, Poisons and Controlled Substances
Act 1981 to be held under the Principal Act.
New section 95A provides that a member of the police force may
apply to the Magistrates' Court for such a declaration if--
· the seized property is no longer required for evidentiary
purposes under the Act under which the original warrant
was issued; and
· no direction has previously been made under section
465(1B) or 465C of the Crimes Act 1958 or section
81(1A) or 81C of the Drugs, Poisons and Controlled
Substances Act 1981 deeming the property to have
been seized as tainted property (see clauses 43, 44, 46
and 47).
If the Magistrates' Court makes such a declaration, the applicant
must give notice to every person known to have an interest in the
property that it is being held under the Principal Act (new section
95D(1)). Notice must be in the prescribed form and given within
7 days after the declaration is made (new section 95D(2)).
New section 95E provides that the effect of a declaration is that
the property to which the declaration applies is deemed to have
been seized as tainted property under a warrant issued under
section 79 of the Principal Act. This means that the return
provisions in section 97 of the Principal Act apply to the
property.
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Clause 26 amends section 97 of the Principal Act, which provides for the
return of seized property.
Victorian Legislation and Parliamentary Documents
Clauses 26(1) and (2) amend section 97 to refer to seizure
warrants.
Clause 26(3) inserts a new section 97(3A) in the Principal Act
which allows the Magistrates' Court to make an order directing--
· that seized property be returned to; or
· that access to seized property be given to,
the person from whom the property was seized or any other
person who claims an interest in the property, on the terms and
conditions that it thinks fit. For example, if a member of the
police force seizes a boat under a warrant issued under section 79
of the Principal Act, the Magistrates' Court could order that the
owner be given access to the boat on the condition that it be
moored at a specific place. The Court may make such an order
on the application of a prescribed person.
Clause 26(4) contains consequential amendments to section 97.
Clause 27 inserts a new Part 11A in the Principal Act dealing with property
management warrants. New Part 11A provides for the issuing
of--
· search and inspection warrants (Division 1); and
· search and seizure warrants (Division 2).
New section 97A(1) provides that a prescribed person or a person
belonging to a prescribed class of persons may apply in writing to
a magistrate for a search and inspection warrant in respect of
property which has been restrained, embargoed or forfeited under
the Principal Act, if the applicant believes on reasonable grounds
that--
· it is necessary to inspect the property for the purposes of
maintaining it; and
· the property (other than real property) is, or may be
within the next 72 hours, on specified premises.
For example, the applicant may believe on reasonable grounds
that it is necessary to inspect restrained premises in order to
determine whether any repairs are required, for the purposes of
maintaining the property while it is subject to a restraining order.
17
New section 97B(1) enables a magistrate to issue a search and
inspection warrant if he or she is satisfied that there are
reasonable grounds for believing the matters set out in the
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application.
A search and inspection warrant authorises the person named in
the warrant to do various things, including entering the premises
specified in the warrant and inspecting, photographing (or
otherwise recording) and making an inventory of the property
specified in the warrant (new section 97B(2)).
A search and inspection warrant does not authorise the applicant
for the warrant to use force to enter the premises. However, a
search and inspection warrant may authorise the sheriff or a
person directed by the sheriff to break and enter the premises
specified in the warrant (new section 97B(3)).
New section 97C requires a magistrate who issues a search and
inspection warrant to record the grounds on which he or she has
issued the warrant.
New section 97D requires the person executing a search and
inspection warrant to--
· announce that he or she is authorised to enter the
premises; and
· give any person at the premises an opportunity to allow
entry to the premises before force is used to enter (only
the sheriff or a person authorised by the sheriff may use
force to enter the premises (see new section 97B(3)).
New section 97E(1) requires the person executing a search and
inspection warrant to identify himself or herself to the occupier
and give a copy of the warrant to the occupier. If the occupier is
not at the premises, the person executing the warrant must
identify himself or herself to any other person at the premises and
give that person a copy of the warrant. "Occupier" for this
purpose is defined as a person who appears to be an occupier of
or to be in charge of the premises, and to be aged 18 or more.
New section 97E(2) requires a person who executes a search and
inspection warrant to give the occupier a copy of the warrant if
the person--
· believes that neither the occupier nor any other person
was present at the premises; or
· has given a copy of the warrant to a person other than
the occupier.
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The copy of the warrant must be given to the occupier as soon as
practicable (but not more than 7 days) after the warrant is
executed.
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Failure to comply with either of these provisions is an offence
subject to a maximum penalty of a level 10 fine (10 penalty
units--$1000).
New section 97F provides that a person executing a search and
inspection warrant may be assisted by any person to achieve the
purpose for which the warrant was issued. For example, the
person executing the warrant may believe that it is reasonably
necessary for the Valuer-General to enter the premises in order to
value restrained property.
New section 97G provides that, subject to any contrary intention
in Division 1 of new Part 11A, the rules applying to search
warrants under the Magistrates' Court Act 1989 apply to search
and inspection warrants.
New section 97H provides that if a search and inspection warrant
is not recalled and cancelled by the magistrate who issued it, the
warrant expires either when it is executed or one month after it is
issued (whichever is earlier). This means that if a search and
inspection warrant is not executed within a month after it is
issued, it cannot be executed.
New section 97I(1) requires a person to whom a search and
inspection warrant was issued to report on various matters in
relation to the execution of the warrant (including whether the
warrant was executed and a brief description of any property
inspected). This report must be given to the registrar of the
Magistrates' Court within 10 days after the warrant expires (new
section 97I(2)).
Once a report is made, the owner or occupier of the premises at
which the warrant was executed or a person who has an interest
in the property inspected may apply to the Magistrates' Court to
view the report (new section 97I(3)).
New section 97J provides that a person who executes a search
and inspection warrant must, within a reasonable time after the
warrant was executed, give any person who has an interest in the
property inspected--
· a copy of any inventory made of the inspected property;
and
19
· a written notice informing the person that he or she may
request a copy of any photograph or other record (for
example, a video recording) made of the property
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inspected.
If a person who has an interest in the property requests a copy of
a photograph or other record, this must be provided within
14 days after the request was made.
New section 97K provides that certain defects in a search and
inspection warrant do not affect the substance or validity of the
warrant.
New section 97L makes it an offence to obstruct or hinder,
without reasonable excuse, a person executing a search and
inspection warrant. The maximum penalty for this offence is a
level 9 fine (60 penalty units--$6000).
New section 97M(1) provides that a prescribed person or a
person belonging to a prescribed class of persons may apply in
writing to a magistrate for a search and seizure warrant to seize
property which has been forfeited under the Principal Act, if the
applicant believes on reasonable grounds that the forfeited
property is, or may be within the next 72 hours, on specified
premises.
When property is forfeited under the Principal Act it vests in the
Minister, subject to any mortgage, charge or encumbrance to
which it was subject immediately before forfeiture, and the
Minister must dispose of the property (see sections 41 and 44 of
the Principal Act). The search and seizure warrant is designed to
assist in this process.
New section 97N(1) enables a magistrate to issue a search and
seizure warrant if he or she is satisfied that there are reasonable
grounds for believing the matters set out in the application.
A search and seizure warrant authorises the person named in the
warrant to enter the premises specified in the warrant, search for
and seize the forfeited property, and break open any receptacle
for the purposes of the search and seizure (if it is reasonably
necessary to do so) (new section 97N(2)).
A search and seizure warrant does not authorise the applicant for
the warrant to use force to enter the premises. However, a search
and seizure warrant may authorise the sheriff or a person directed
by the sheriff to break and enter the premises specified in the
warrant (new section 97N(3)).
20
New section 97O requires a magistrate who issues a search and
seizure warrant to record the grounds on which he or she has
issued the warrant.
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New section 97P requires the person executing a search and
seizure warrant to--
· announce that he or she is authorised to enter the
premises; and
· give any person at the premises an opportunity to allow
entry to the premises before force is used to enter (only
the sheriff or a person authorised by the sheriff may use
force to enter the premises (see new section 97N(3)).
New section 97Q(1) requires the person executing a search and
seizure warrant to identify himself or herself to the occupier and
give a copy of the warrant to the occupier. If the occupier is not
at the premises, the person executing the warrant must identify
himself or herself to any other person at the premises and give
that person a copy of the warrant.
New section 97Q(2) requires a person who executes a search and
inspection warrant to give the occupier a copy of the warrant if
the person--
· believes that neither the occupier nor any other person
was present at the premises; or
· has given a copy of the warrant to a person other than
the occupier.
The copy of the warrant must be given to the occupier as soon as
practicable (but not more than 7 days) after the warrant is
executed.
Failure to comply with either of these provisions is an offence
subject to a maximum penalty of a level 10 fine (10 penalty
units--$1000).
New section 97R provides that a person executing a search and
seizure warrant may be assisted by any person to achieve the
purpose for which the warrant was issued.
New section 97S provides that, subject to any contrary intention
in Division 2 of new Part 11A, the rules applying to search
warrants under the Magistrates' Court Act 1989 apply to search
and seizure warrants.
21
New section 97T provides that if a search and seizure warrant is
not recalled and cancelled by the magistrate who issued it, the
warrant expires either when it is executed or one month after it is
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issued (whichever is earlier). This means that if a search and
seizure warrant is not executed within a month after it is issued, it
cannot be executed.
New section 97U(1) requires a person to whom a search and
seizure warrant was issued to report on various matters in relation
to the execution of the warrant (including whether the warrant
was executed and a brief description of any property seized).
This report must be given to the registrar of the Magistrates'
Court within 10 days after the warrant expires.
Once a report is made, the owner or occupier of the premises at
which the warrant was executed, or a person who has an interest
in the property seized, may apply to the Magistrates' Court to
view the report (new section 97U(3)).
New section 97V provides that certain defects in a search and
seizure warrant do not affect the substance or validity of the
warrant.
New section 97W makes it an offence to obstruct or hinder,
without reasonable excuse, a person executing a search and
seizure warrant. The maximum penalty for this offence is a
level 9 fine (60 penalty units--$6000).
Clause 28 amends section 98 of the Principal Act in relation to examination
orders.
New section 98(2)(d) allows the court to make an order for the
examination of any person concerning issues connected with the
effective management and maintenance of--
· property in which the defendant has an interest; or
· any other property which the applicant believes on
reasonable grounds to be tainted property.
New section 98(2A) provides that, in determining whether it is
appropriate to make an examination order under section 98(2),
the likelihood of the defendant being convicted of the offence
with which he or she has been charged is not a relevant
consideration.
Clause 29 inserts a new Division 3A in Part 13 of the Principal Act to
provide for the issuing of information notices. Part 13 of the
Principal Act concerns information gathering. An information
notice is a notice issued to a financial institution by a law
enforcement agency, requiring the financial institution to provide
22
information about an account or accounts held with that
institution.
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New section 118A provides that, for the purposes of new
Division 3A, "authorised member of the police force" means a
member of the police force authorised under new section 118B.
New section 118B allows the Chief Commissioner of Police to
authorise in writing a member of the police force of the rank of
inspector or above to issue information notices.
New section 118C provides that an information notice may be
issued by an authorised member of the police force (see new
section 118D) or a prescribed person (see new section 118E).
New section 118D sets out the grounds on which, and the
circumstances in which, an authorised member of the police force
may issue an information notice to a financial institution.
An information notice could be used by police as an investigatory
tool to determine whether to apply for a freezing order (see new
Part 2A of the Principal Act, inserted by clause 10) or a
restraining order in respect of money in an account held with a
financial institution.
New section 118E allows a person prescribed under new
section 118C to issue an information notice for the purposes of
satisfying a pecuniary penalty order (see Part 8 of the Principal
Act). This provision is intended to assist in the enforcement of
pecuniary penalty orders under the Principal Act.
New section 118F requires a person who issues an information
notice to sign the notice and record his or her reasons for issuing
the notice.
New section 118G(1) sets out the information which a financial
institution can be required to provide under an information
notice. This is limited to information as to whether an account is
held in a specified name or names, the name or names in which a
specified account is held, the account number and the current
balance of the account.
New section 118H requires every information notice to be in the
prescribed form and to specify various matters. These matters
include any details that may assist the financial institution to
identify the relevant account and the period within which the
financial institution must comply with the notice. A financial
institution must be given at least 3 business days to comply with
an information notice.
23
New section 118I provides that an information notice may be
given to a financial institution by fax (in addition to the other
methods of service specified under section 137 of the Principal
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Act).
New section 118J provides that a financial institution that has
been given an information notice must not--
· without reasonable excuse, fail to comply with the
information notice; or
· knowingly give information that is false or misleading
in a material particular.
The maximum penalty for these offences is a level 5 fine
(1200 penalty units--$120 000). This is a summary offence.
New section 118K sets out secrecy provisions in relation to
information notices.
Unless the existence of an information notice has been made
known in open court, it is an offence for a financial institution to
disclose the existence of the information notice to any person
other than--
· a member of the police force (if the information notice
is issued by an authorised member of the police force);
· a member, officer or employee of another law
enforcement agency (if the information notice is issued
by a person prescribed for the purposes of new
section 118C);
· an officer or agent of the financial institution, for the
purpose of ensuring that the information notice is
complied with; or
· a legal practitioner acting for the financial institution,
for the purpose of obtaining legal advice or
representation in relation to the information notice
(new section 118K(1) and (7)).
The maximum penalty for this offence is a level 5 fine
(1200 penalty units--$120 000). This is a summary offence.
Unless the existence of an information notice has been made
known in open court, it is also an offence for a person to whom
the existence of an information notice is disclosed to disclose the
existence of the information notice except in the limited
circumstances, to the people and for the purposes specified in
new section 118K(2).
24
The maximum penalty for this offence is level 7 imprisonment
(2 years) or a level 7 fine (240 penalty units--$24 000) or both.
This is a summary offence.
Victorian Legislation and Parliamentary Documents
New section 118L provides an immunity from civil liability for
financial institutions (and their officers, employees and agents)
which may arise as a result of action taken or information given
by an institution or person in order to comply with an information
notice. This new section is intended to limit the jurisdiction of
the Supreme Court (see clause 35).
New section 118M provides that if a financial institution is or has
been given an information notice, the fact that the information
notice has been issued must be disregarded for the purposes of
the application of section 122 of the Principal Act in relation to
the institution. Section 122 contains the offence of money
laundering.
Clause 30 inserts a new Division 4 in Part 13 of the Principal Act.
New Division 4 contains new section 119A, which allows
information to be shared between law enforcement agencies in
certain limited circumstances (see also clause 33, which amends
section 140 of the Principal Act).
New section 119A provides that a member, officer or employee
of a law enforcement agency may only communicate information
to another law enforcement agency if the member, officer or
employee believes on reasonable grounds that to do so is
necessary for--
· the management of property which has been seized,
restrained or embargoed under the Principal Act;
· the purposes of any proceedings under the Principal
Act; or
· the enforcement of the Principal Act or any orders made
under it.
Clause 31 inserts a new Division 6 in Part 13 of the Principal Act
concerning document requests.
New section 120A enables the Secretary to request a person to
produce documents concerning property which the Secretary has
responsibility for managing.
New section 120B indicates the matters that must be included in
the document request. For example, the Secretary must specify
the documents sought, and in accordance with privacy principles,
25
indicate whether the documents will be provided to any other
person and if so, in what circumstances.
Victorian Legislation and Parliamentary Documents
New section 120C provides that it is an offence to fail to comply
with the Secretary's request, unless the person has a reasonable
excuse for doing so. It is also an offence to provide a document
that is false or misleading. Each offence is punishable by a
maximum penalty of a level 9 fine (60 penalty units--$6000).
New section 120D provides that upon conviction of an offence
under new section 120C the court may direct the person to
provide the documents originally requested by the Secretary.
New section 120E provides that documents provided to the
Secretary in response to the Secretary's request must be returned
within 7 days. The Secretary may retain an original document in
specified circumstances, but must then return a certified copy of
the document produced.
Clause 32 inserts a new section 139A in the Principal Act, providing that
the Chief Commissioner of Police and a law enforcement agency
prescribed for this purpose must report to the Minister on the
exercise of certain powers concerning information notices,
freezing orders, search and inspection warrants and document
requests. The Minister must cause each report to be laid before
each House of Parliament within 14 days of receiving the report.
Clause 33 amends section 140 of the Principal Act to ensure that the secrecy
offences do not operate to prevent law enforcement agencies
from being able to communicate information with each other that
is believed on reasonable grounds to be necessary for specified
purposes concerning confiscation proceedings.
Clause 34 inserts a new section 143A which enables the Secretary to the
Department of Justice to delegate any power or function
concerning requests for the production of documents under new
Division 6 of Part 13 (see clause 31). The purpose of this
provision is to allow a delegate or delegates to assist the
Secretary in discharging his or her functions concerning
document requests under new sections 120A to 120E in the
interests of effective property management.
Clause 35 amends section 145 of the Principal Act to provide that it is the
intention of new section 118L (inserted by clause 29) to alter or
vary section 85 of the Constitution Act 1975 by limiting the
jurisdiction of the Supreme Court.
26
Section 118L provides that no civil proceeding lies against a
financial institution or an officer, employee or agent of the
institution acting in the course of that person's duties, in relation
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to any action taken or information given by the institution or
person in compliance with an information notice.
The reason for the limitation of the Supreme Court's jurisdiction
is that, without such an immunity, by assisting the State in
investigating and enforcing matters under the Confiscation Act
1997, financial institutions and their officers could be exposed to
significant civil liability for breach of obligations to account
holders, such as the obligation to maintain confidentiality.
Clause 36 inserts new offences in Schedule 1 to the Principal Act. Offences
listed in Schedule 1 of the Act are forfeiture offences. The new
offences include offences under the Dangerous Goods Act 1985,
the Fisheries Act 1995 and the National Parks Act 1975.
Clause 37 inserts new offences concerning drug trafficking and drug
trafficking to a child in Schedule 2 to the Principal Act. To be an
automatic forfeiture offence, the amount of the drug of
dependence trafficked must be an automatic forfeiture quantity as
specified in the Drugs, Poisons and Controlled Substances Act
1981, as amended by clause 45 of this Bill.
Clause 38 substitutes new items 2, 2A, 2B and 2C for item 2 of Schedule 2
to the Principal Act. Schedule 2 lists automatic forfeiture
offences.
The new offences include--
· extortion with threat to kill;
· extortion with threat to destroy property;
· theft;
· robbery;
· armed robbery;
· obtaining property by deception;
· obtaining financial advantage by deception;
· blackmail;
· handling stolen goods;
· receipt or solicitation of secret commission by an agent;
27
· giving or receiving false or misleading receipt or
account with intent to defraud or deceive principal;
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· gift or receipt of secret commission in return for advice;
· secret commission to trustee in return for substituted
appointment;
· fraudulently inducing persons to invest money;
· receiving payment for sexual services provided by a
child;
· agreement for provision of sexual services by a child;
· carrying on a business as a prostitution service provider
without licence or in breach of licence;
· assisting in carrying on a prostitution service providing
business without licence or in breach of licence; and
· bribery of or by a key official under the Casino Control
Act 1991 or the Gaming and Betting Act 1994.
Each of the above offences will be an automatic forfeiture
offence only if the convicting court is satisfied that the specified
circumstances are present. For example--
· where a person is convicted of one offence of theft, the
offence will be an automatic forfeiture offence if the
value of the property stolen is $50 000 or more; or
· where more than one offence of theft is charged and the
offences are founded on the same facts or form part of a
series of offences of the same or similar character, the
offences will be treated as an automatic forfeiture
offence if the value of the property stolen is $75 000 or
more.
Clause 39 amends item 3 of Schedule 2 to the Principal Act consequentially
upon amendments made by clauses 38 and 41, to provide that
money laundering concerning the proceeds of an offence
committed in the circumstances specified in new item 1, 1A, 2,
2A, 2B, 2C, 8 or 9 constitutes an automatic forfeiture offence.
Clause 40 amends item 5 of Schedule 2 to the Principal Act consequentially
upon amendments made by clauses 38 and 41, to provide that an
attempt to commit any offence in the circumstances specified in
new item 1, 1A, 2, 2A, 2B, 2C, 3, 8 or 9 constitutes an automatic
forfeiture offence.
28
Clause 41 substitutes a new item 7 and inserts new items 8 and 9 in
Schedule 2 to the Principal Act. Where a common law offence
of--
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· conspiracy to defraud;
· misconduct in public office; or
· bribery of a public official,
is committed in the specified circumstances, the offence will
constitute an automatic forfeiture offence (for example, where the
financial advantage sought to be defrauded in one offence is
$50 000 or more).
PART 3--TRANSITIONAL PROVISIONS
Part 3 contains transitional provisions in relation to certain amendments to
the Principal Act.
Clause 42 inserts new sections 158 to 172 in the Principal Act.
New section 158 provides that the amended definition of "tainted
property", in so far as it relates to offences under section 122 or
123(1), applies only with respect to an offence under one of these
sections of which a person is convicted after the commencement
of clause 4(5) of the Bill. Section 4 of the Principal Act provides
that a conviction includes a finding of guilt.
New section 159 provides that the provisions concerning
declarations of property interests apply only in relation to
restraining orders made after the commencement of clause 8 of
the Bill.
New section 160 provides that the provisions concerning freezing
orders (see clause 10) apply in relation to any forfeiture offence,
automatic forfeiture offence or civil forfeiture offence
irrespective of when the offence is alleged to have been
committed.
New section 161 provides that the provisions concerning tainted
property substitution declarations apply only to forfeiture
offences alleged to have been committed after the
commencement of clause 12. Where an offence is alleged to
have been committed between two dates and clause 12
commences on a date between those two dates, the offence is
alleged to have been committed before the commencement of
that clause.
29
New section 162 provides that the amendments made to disposal
orders apply in relation to any forfeiture offence of which a
person is convicted after the commencement of clauses 16 and
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17, irrespective of when the offence is alleged to have been
committed.
New section 163 provides that the new sections concerning the
seizure of property under the Crimes Act 1958 and the Drugs,
Poisons and Controlled Substances Act 1981 (see clause 25)
apply irrespective of when the warrant to seize the property was
executed.
New section 164 provides that the amendments to examination
orders apply only where the application for the examination order
was made after the commencement of clause 28.
New section 165 provides that document requests as provided for
by new Division 6 of Part 13 (see clause 31) apply irrespective of
when the restraining order was made or the warrant was executed
(as the case may be).
New section 166 provides that the new offences inserted in
Schedule 1 to the Principal Act by clause 36 apply only where
the offence is alleged to have been committed after the
commencement of clause 36. Where an offence is alleged to
have been committed between two dates and clause 36
commences on a date between those two dates, the offence is
alleged to have been committed before the commencement of
that clause.
New section 166 also provides that item 7(j) of Schedule 1
(substituted by clause 36) continues to apply (as if it had not been
substituted) to an offence which is alleged to have been
committed before the commencement of clause 36.
New section 167 provides that the new drug trafficking offences
inserted in item 1 of Schedule 2 to the Principal Act by clause 37
apply only where the offence is alleged to have been committed
after the commencement of clause 37. Where an offence is
alleged to have been committed between two dates and clause 37
commences on a date between those two dates, the offence is
alleged to have been committed before the commencement of
that clause.
New section 168 provides that--
· item 2 of Schedule 2 to the Principal Act (substituted by
clause 38) continues to apply (as if it had not been
substituted) to an offence which is alleged to have been
committed before the commencement of clause 38;
30
· item 2 of Schedule 2 (as amended by clause 38) applies
only to offences alleged to have been committed after
the commencement of clause 38; and
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· the new items 2A, 2B and 2C inserted in Schedule 2 by
clause 38 apply only to offences alleged to have been
committed after the commencement of clause 38.
For the purposes of section 168, where an offence is alleged to
have been committed between two dates and clause 38
commences on a date between those two dates, the offence is
alleged to have been committed before the commencement of
that clause.
New section 169 provides that--
· item 3 of Schedule 2 to the Principal Act (amended by
clause 39) continues to apply (as if it had not been
amended) to an offence which is alleged to have been
committed before the commencement of clause 39; and
· item 3 of Schedule 2 (as amended by clause 39) applies
only to offences alleged to have been committed after
the commencement of clause 39.
For the purposes of section 169, where an offence is alleged to
have been committed between two dates and clause 39
commences on a date between those two dates, the offence is
alleged to have been committed before the commencement of
that clause.
New section 170 provides that--
· item 5 of Schedule 2 to the Principal Act (amended by
clause 40) continues to apply (as if it had not been
amended) to an offence which is alleged to have been
committed before the commencement of clause 40; and
· item 5 of Schedule 2 (as amended by clause 40) applies
only to offences alleged to have been committed after
the commencement of clause 40.
For the purposes of section 170, where an offence is alleged to
have been committed between two dates and clause 40
commences on a date between those two dates, the offence is
alleged to have been committed before the commencement of
that clause.
31
New section 171 provides that--
· item 7 of Schedule 2 to the Principal Act (substituted by
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clause 41) continues to apply (as if it had not been
substituted) to an offence which is alleged to have been
committed before the commencement of clause 41;
· item 7 of Schedule 2 (as amended by clause 41) applies
only to offences alleged to have been committed after
the commencement of clause 41; and
· the new items 8 and 9 inserted in Schedule 2 by
clause 41 apply only to offences alleged to have been
committed after the commencement of clause 41.
For the purposes of section 171, where an offence is alleged to
have been committed between two dates and clause 41
commences on a date between those two dates, the offence is
alleged to have been committed before the commencement of
that clause.
New section 172 provides that the transitional provisions in new
sections 158 to 171 are additional to, and do not derogate from,
the provisions of the Interpretation of Legislation Act 1984.
PART 4--AMENDMENTS TO OTHER ACTS
Part 4 contains amendments to the Crimes Act 1958, the Drugs, Poisons
and Controlled Substances Act 1981 and the Sentencing Act 1991.
Clause 43 amends section 465 of the Crimes Act 1958.
A search warrant issued under section 465 of the Crimes Act
1958 allows a member of the police force to seize property that
may provide evidence of the commission of an offence.
Where such property is seized for evidentiary purposes, it cannot,
without further court authority, be held for the purposes of
confiscation proceedings under the Principal Act.
New sections 465(1B) and 465A to 465E (inserted by clause 44)
enable police to obtain such court authority at either of the
following points in time--
· when a magistrate issues a warrant under section 465
(new section 465(1B)); or
· when property is seized under a warrant issued under
section 465 and then brought before the Magistrates'
Court to be dealt with according to law (new sections
465B and 465C, inserted by clause 44).
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New section 465(1B) enables a magistrate who issues a search
warrant under section 465(1) of the Crimes Act 1958, to make a
direction at the time of issuing the warrant. The terms of a
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direction under new section 465(1B) are that any property to
which the warrant relates, which the magistrate is satisfied is also
"tainted property" within the meaning of the Principal Act, is to
be held as if it had been seized under section 79 of the Principal
Act. Section 79 provides for the issuing of search warrants to
seize tainted or forfeited property.
This direction in the warrant is to take effect as and from the date
when the property is no longer required for evidentiary purposes
under the Crimes Act 1958 (see also new sections 465A and
465E inserted by clause 44).
Clause 44 inserts new sections 465A to 465E in the Crimes Act 1958.
New section 465A provides that--
· where a magistrate has made a direction under new
section 465(1B) (see clause 43); and
· the property which is the subject of the direction is no
longer required for evidentiary purposes under the
Crimes Act 1958,
the person to whom the warrant was issued must inform every
person known to have an interest in the property that it is being
held under the Principal Act.
New section 465B allows a member of the police force to apply
for a Magistrates' Court direction under new section 465C, which
is similar to the direction under new section 465(1B). While the
direction under new section 465(1B) is made at the point of
issuing the warrant, the direction under new section 465C is
made at a later point, where property has been seized and is
brought before the Court to be dealt with according to law.
New section 465D provides that, where a magistrate has made a
direction under new section 465C, the applicant for the direction
must inform every person known to have an interest in the
property that it is being held under the Principal Act.
New section 465E provides that the effect of a direction under
new sections 465(1B) and 465C is that the property to which the
direction applies is deemed to have been seized as tainted
property under a warrant issued under section 79 of the Principal
Act and is to be dealt with under that Act. This deeming takes
effect from the time when the property is no longer required for
evidentiary purposes under the Crimes Act 1958.
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Clause 45 inserts a new definition of "automatic forfeiture quantity" in
section 70(1) of the Drugs, Poisons and Controlled Substances
Act 1981. The new definition applies only to drugs of
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dependence specified in column 1 of Part 3 of Schedule Eleven
to the Drugs, Poisons and Controlled Substances Act 1981.
It does not apply to drugs specified in Part 1 or 2 of Schedule
Eleven to that Act.
The new definition of "automatic forfeiture quantity" means the
quantity of a drug of dependence, including any other substance
in which it is contained or with which it is mixed, that is
specified in column 2B of Part 3 of Schedule Eleven (as inserted
by clause 49) opposite to the relevant drug.
The new definition of "automatic forfeiture quantity" is relevant
to amendments made to Schedule 2 to the Principal Act.
For instance, as a result of amendments to Schedule 2 made by
clause 37 of the Bill, the offences of--
· trafficking in a drug of dependence to a child under
section 71AB of the Drugs, Poisons and Controlled
Substances Act 1981; and
· trafficking in a drug of dependence under section 71AC
of the Drugs, Poisons and Controlled Substances Act
1981,
are automatic forfeiture offences within the meaning of the
Principal Act, where the offences are committed in the following
circumstances--
· the drug trafficked is a drug specified in Part 3 of
Schedule Eleven to the Drugs, Poisons and Controlled
Substances Act 1981; and
· the quantity of drug trafficked is not less than an
"automatic forfeiture quantity" applicable to that drug.
Clause 46 amends section 81 of the Drugs, Poisons and Controlled
Substances Act 1981.
A search warrant issued under section 81 of the Drugs, Poisons
and Controlled Substances Act 1981 allows a member of the
police force to seize property that may provide evidence of the
commission of an offence. Where such property is seized for
evidentiary purposes, it cannot, without further court authority,
be held for the purposes of confiscation proceedings under the
Principal Act.
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The amendments to section 81 and new sections 81A to 81E
(inserted by clause 47) enable police to obtain such court
authority at either of the following points in time--
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· when a magistrate issues a warrant under section 81
(new section 81(1A)); or
· when property is seized under a warrant issued under
section 81 and then brought before the Magistrates'
Court to be dealt with according to law (new sections
81B and 81C, inserted by clause 47).
New section 81(1A) enables a magistrate who issues a search
warrant under section 81(1) of the Drugs, Poisons and
Controlled Substances Act 1981, to make a direction at the time
of issuing the warrant. The terms of a direction under new
section 81(1A) are that any property to which the warrant relates,
which the magistrate is satisfied is also "tainted property" within
the meaning of the Principal Act, is to be held as if it had been
seized under section 79 of the Principal Act. Section 79 provides
for the issuing of search warrants to seize tainted or forfeited
property.
This direction is to take effect as and from the date when the
property is no longer required for evidentiary purposes under the
Drugs, Poisons and Controlled Substances Act 1981 (see also
new sections 81A and 81E inserted by clause 47).
Clause 47 inserts new sections 81A to 81E in the Drugs, Poisons and
Controlled Substances Act 1981.
New section 81A provides that--
· where a magistrate has made a direction under new
section 81(1A) (see clause 46); and
· the property which is the subject of the direction is no
longer required for evidentiary purposes under the
Drugs, Poisons and Controlled Substances Act
1981--
the person to whom the warrant was issued must inform every
person known to have an interest in the property that it is being
held under the Principal Act.
New section 81B allows a member of the police force to apply
for a Magistrates' Court direction under new section 81C, which
is similar to the direction under new section 81(1A). While the
direction under new section 81(1A) is made at the point of
issuing the warrant, the direction under new section 81C is made
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at a later point, where property has been seized and is brought
before the Court to be dealt with according to law.
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New section 81D provides that, where a magistrate has made a
direction under new section 81C, the applicant for the direction
must inform every person known to have an interest in the
property that it is being held under the Principal Act.
New section 81E provides that the effect of a direction under new
sections 81(1A) and 81C is that the property to which the
direction applies is deemed to have been seized as tainted
property under a warrant issued under section 79 of the Principal
Act and is to be dealt with under that Act. This deeming takes
effect from the time when the property is no longer required for
evidentiary purposes under the Drugs, Poisons and Controlled
Substances Act 1981.
Clause 48 amends the form of the search warrant in Schedule Ten to the
Drugs, Poisons and Controlled Substances Act 1981
consequentially upon the amendment in clause 46.
Clause 49 substitutes a new Part 3 of Schedule Eleven to the Drugs,
Poisons and Controlled Substances Act 1981, which includes a
new column 2B, specifying the "automatic forfeiture quantity"
applicable to each drug of dependence in Part 3 of that Schedule.
With the exception of lysergic acid diethylamide, the "automatic
forfeiture quantity" specified in column 2B of Part 3 of Schedule
Eleven to the Drugs, Poisons and Controlled Substances Act
1981 in relation to a particular drug is equivalent to 6 per cent of
the commercial quantity applicable to that drug specified in
column 2A of Part 3 of Schedule Eleven to that Act (a quantity of
drug of dependence mixed with another substance). For
example, the commercial quantity of heroin (diacetylmorphine)
specified in column 2A is 500 grams, while the "automatic
forfeiture quantity" is 30 grams.
As there is no commercial quantity applicable to lysergic acid
diethylamide in column 2A, the "automatic forfeiture quantity" of
this drug is equivalent to 6 per cent of the commercial quantity
applicable to that drug specified in column 2 of Part 3 of
Schedule Eleven to the Drugs, Poisons and Controlled
Substances Act 1981 (a quantity of drug which is not mixed with
another substance).
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Clause 50 amends section 5(2A) of the Sentencing Act 1991 to allow a
court, in sentencing an offender, to have regard to the fact that
certain property (including property that was used in the
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commission of the offence) has been automatically forfeited.
The sentencing court may only have such regard if it is satisfied
that the property was acquired lawfully.
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