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Justice Legislation Amendment
(Confiscation and Other Matters) Bill
2014
Amended Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill, which are--
· to amend the Confiscation Act 1997--
· to establish a scheme for the confiscation of
property not acquired by lawful means; and
· to enable payments to be made from the proceeds
of forfeited property to jurisdictions that have
contributed to the recovery of that property; and
· to require a person who has applied for an
exclusion order from a restraining order made for
the purposes of automatic forfeiture to provide
certain documentary evidence; and
· to amend the Criminal Organisations Control and
Other Acts Amendment Act 2014 in relation to special
hearings under the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 in the Children's
Court; and
· to amend the Judicial Proceedings Reports Act 1958
in relation to the publication of matters involving certain
sexual offences; and
571539 1 BILL LA AMENDED 17/9/2014
· to amend the Juries Act 2000 in relation to potential
jurors stood aside by the Crown in criminal trials; and
· to amend the Personal Safety Intervention Orders
Act 2010 to provide for the sharing of information
between the Magistrates' Court and the Dispute
Settlement Centre of Victoria; and
· to amend the Road Safety Camera Commissioner Act
2011 to provide the Road Safety Camera Commissioner
with an additional function to provide advice about the
road safety camera system; and
· to amend the Sentencing Act 1991 to clarify the
maximum period for which the Magistrates' Court may
make community correction orders in certain
circumstances; and
· to amend the Summary Offences Act 1966 to create
new offences of assaulting a registered health
practitioner; and
· to amend the Confiscation Act 1997, the Drugs,
Poisons and Controlled Substances Act 1981 and the
Sentencing Act 1991 consequential on reforms to the
law of complicity; and
· to make other miscellaneous amendments.
Clause 2 sets out the commencement of the Bill.
Subclause (1) provides that Parts 1, 3, 4, 5 and 7, and
Divisions 2, 3, 4 and 5 of Part 10 come into operation on the day
after the day on which the Bill receives the Royal Assent.
Subclause (2) provides that Parts 2, 6, 8, 9 (other than clause 60)
and 11 come into operation on a day or days to be proclaimed.
Subclause (3) provides that clause 60 comes into operation on the
later of the day on which clause 59 comes into operation or the
day on which section 3 of the Private Health Care Facilities
Act 2014 comes into operation. Clause 60 makes an amendment
to update a definition that will become redundant when, if
passed, the Private Health Care Facilities Act 2014 comes into
operation. The Private Health Care Facilities Bill 2014 is
currently before the Parliament.
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Subclause (4) provides that clauses 61(1) and 62 come into
operation on the later of the day on which Division 3 of Part 2 of
the Criminal Organisations Control and Other Acts
Amendment Act 2014 comes into operation or the day on which
section 7(9) of the Crimes Amendment (Abolition of Defensive
Homicide) Act 2014 comes into operation. Clauses 61(1) and 62
make amendments to the serious drug offender regime (to be
inserted in the Confiscation Act 1997 by Division 3 of Part 2
of the Criminal Organisations Control and Other Acts
Amendment Bill 2014, which is currently before the Parliament).
The amendments made by clauses 61(1) and 62 are consequential
on reforms to the law of complicity in the Crimes Amendment
(Abolition of Defensive Homicide) Bill 2014, also currently
before the Parliament.
Subclause (5) provides that clauses 61(2) and 64 come into
operation on the day on which section 7(9) of the Crimes
Amendment (Abolition of Defensive Homicide) Act 2014
comes into operation. The amendments made by clauses 61(2)
and 64 are consequential on reforms to the law of complicity in
the Crimes Amendment (Abolition of Defensive Homicide) Bill
2014, which is currently before the Parliament.
Subclause (6) provides that clause 63 comes into operation on the
later of the day on which section 4 of the Sentencing
Amendment (Emergency Workers) Act 2014 comes into
operation or the day on which section 6 of the Crimes
Amendment (Abolition of Defensive Homicide) Act 2014
comes into operation. Clause 63 amends provisions to be
inserted in the Sentencing Act 1991 by the Sentencing
Amendment (Emergency Workers) Bill 2014 (currently before
the Parliament). The amendments remove references to aiding
and abetting, consequential on reforms to the law of complicity.
Subclause (7) provides that if any provision of the Act (other than
clause 60 or a provision of Division 1 of Part 10) does not come
into operation before 1 July 2015, it comes into operation on that
day.
PART 2--AMENDMENT OF CONFISCATION ACT 1997
Part 2 of the Bill amends the Confiscation Act 1997 to establish a scheme
for the confiscation of "unexplained wealth", that is property of a person of
which that person cannot explain the lawful acquisition. This Part also
amends the Confiscation Act 1997 to provide for the "equitable sharing" of
proceeds of confiscation action with other jurisdictions, and to increase the
evidentiary requirements on a person seeking exclusion of property from an
automatic forfeiture restraining order.
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Division 1--Unexplained Wealth
Division 1 of the Bill amends the Confiscation Act 1997 to establish an
"unexplained wealth" scheme that allows for the confiscation of forfeiture of
property or wealth of which the owner cannot explain the lawful origin.
The unexplained wealth scheme will allow the DPP, or another authorised
applicant, to seek the restraint of property under an unexplained wealth
restraining order where one of two threshold tests can be satisfied. The first
threshold test is based on a suspicion on reasonable grounds that a person
with an interest in the property has engaged in "serious criminal activity" and
will require that the total of the property sought to be restrained is valued at
least $50 000. The second test is that there is a suspicion on reasonable
grounds that the property sought to be restrained was not lawfully acquired,
and will apply to property of any value.
"Serious criminal activity" is defined as conduct that constitutes one or more
of a range of categories of offences. These offences are generally punishable
by at least five years" imprisonment and are of a nature that can generate or
conceal criminal wealth.
Once an unexplained wealth restraining order is in place, the person whose
property has been restrained (or a third party with an interest in the property)
can apply to the court that made the order for exclusion of property. To have
property excluded from restraint, the person must be able to demonstrate to
the court, on the balance of probabilities, that the property was lawfully
acquired. To show that property was lawfully acquired it will be necessary to
show that the consideration provided for it was lawfully acquired, or if not
acquired for sufficient consideration that the person from whom it was
acquired had lawfully acquired the property.
Once all exclusion applications have been dealt with, and at least six months
have expired from the making of the unexplained wealth restraining order, all
property still subject to restraint will be forfeited to the State. Once property
has been forfeited to the State, a person may within 60 days make an
application for a payment from the forfeited proceeds on the basis that the
forfeiture has caused the person undue hardship.
Clause 3 amends section 1 of the Confiscation Act 1997, which sets out
the purposes of that Act, to include a new purpose, which is to
provide for the forfeiture of property of a person who is unable to
satisfy a court that the property was lawfully acquired.
Clause 4 amends section 3(1) of the Confiscation Act 1997, which
contains the definitions used in that Act, to amend some
definitions and insert some new definitions.
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Paragraph (a) amends the definition of derived property to ensure
that the definition of derived property in relation to civil
forfeiture also applies to unexplained wealth forfeiture.
Paragraph (b) amends the definition of gift to ensure that the
definition of that term as it applies to civil forfeiture also applies
to unexplained wealth forfeiture.
Paragraph (c) amends the definition of law enforcement agency
to include persons responsible for the management of property
subject to an unexplained wealth restraining order.
Paragraph (d) amends the definition of property-tracking
document to include in that definition a document relevant to
identifying property that was not lawfully acquired.
Paragraph (e) amends the definition of restrained property to
include property to which an unexplained wealth restraining
order applies.
Paragraph (f) inserts a number of new defined terms that will be
used in the new Part 4 introduced into the Act by this Bill.
Clause 5 amends the objects of the Confiscation Act 1997, which are
found in section 3A of that Act, to include a new object, to
undermine the profitability of serious criminal activity.
Clause 6 amends section 7A of the Confiscation Act 1997, which
provides the meaning of derived property for the purposes of
civil forfeiture.
Subclause (1) amends the heading to this section to make it clear
that this section applies to both civil forfeiture and unexplained
wealth forfeiture.
Subclause (2) amends section 7A to provide that the definition of
derived property found in that section applies also to unexplained
wealth forfeiture.
Clause 7 inserts a new section 7C into the Confiscation Act 1997, to
provide a definition of serious criminal activity, a term used in
the new Part 4A of the Act inserted by clause 16 of the Bill.
Serious criminal activity is defined at paragraph (a) to mean an
act or omission or course of conduct done or occurring in
Victoria that constitutes one or more of the following--
i. A Schedule 2 offence. This is a term defined in the Act
to mean any of the offences listed in Schedule 2 of the
Act, a list of serious offences that can form the basis of
automatic forfeiture under the Act.
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ii. Any other offence that is punishable by a term of
imprisonment of 5 years or more and involves theft,
fraud, obtaining financial benefit from the crime of
another, money laundering, extortion, violence, bribery,
corruption, harbouring criminals, blackmail, obtaining
or offering a secret commission, perverting the course of
justice, tax or revenue evasion, illegal gambling, sex
work, production or dissemination of child
pornography, drug cultivation, drug trafficking, forgery
or homicide. This list is intended to be descriptive,
rather than being a list of offences. Offences involving
these matters are included in the definition of serious
criminal activity as they may lead to the creation or
concealment of criminal wealth.
iii. An offence against section 7C, 59, 93, 94 or 96 of the
Firearms Act 1996 (which are offences relating to the
unlawful sale of firearms).
iv. An offence against section 195 of the Crimes Act 1958.
This is the offence of dealing with property suspected of
being proceeds of crime.
v. An offence of attempting to commit, or of conspiracy or
incitement to commit, any of the above offences.
vi. An offence against a law of the Commonwealth
punishable by a term of imprisonment of 5 years or
more that involves anything referred to in
subparagraph (ii).
Paragraph (b) extends the definition of serious criminal activity
to include an act or omission or course of conduct done or
occurring in another jurisdiction that constitutes an offence in
that jurisdiction and, if done in Victoria, would constitute an
offence referred to in paragraph (a).
Clause 8 amends section 12 of the Confiscation Act 1997 which deals
with the jurisdiction of courts to hear applications made under
that Act.
Subclause (1) inserts a new section 12(2A) to provide that the
Magistrates' Court and the Children's Court may not make an
unexplained wealth restraining order in relation to real property.
Subclause (2) inserts a new section 12(5A) to provide that
Magistrates' Court and the Children's Court may not make an
unexplained wealth restraining order in relation to property
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valued at greater than the jurisdictional limit of the Magistrates'
Court in civil proceedings.
Clause 9 amends the heading to Part 2 of the Confiscation Act 1997 to
reflect that that Part now deals with restraining orders other than
civil forfeiture restraining orders and unexplained wealth
restraining orders.
Clause 10 substitutes a new section 15A of the Confiscation Act 1997.
Section 15A of the Act provides that property may be subject to a
restraining order as well as other orders made under the Act.
The amendments contained in this Bill will introduce a new order
that can be obtained under the Act, an unexplained wealth
restraining order.
The new section 15A will make clear that property can be subject
to a restraining order under Part 2 of the Act, as well as one or
both of a civil forfeiture restraining order and an unexplained
wealth restraining order.
New section 15A(2) outlines the circumstances in which a
restraining order, made in relation to the same item of property in
relation to which another restraining order is made, will cease to
operate.
Clause 11 amends section 16(5) of the Confiscation Act 1997 to make
clear that an application for an unexplained wealth restraining
order in relation to property does not preclude an application for
a restraining order under section 16 in relation to the same
property.
Clause 12 amends section 31D of the Confiscation Act 1997, which deals
with applications for a freezing order. These amendments will
ensure that freezing orders are available to support unexplained
wealth proceedings.
Subclause (1) amends section 31D by inserting a new
subsection (1B) which provides that an authorised police officer
may apply for a freezing order in respect of an account if he or
she suspects on reasonable grounds that the person in whose
name the account is held has engaged in serious criminal activity,
and that an application for an unexplained wealth restraining
order is likely to be made in respect of money held in the
account.
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Clause 13 amends section 31F of the Confiscation Act 1997, which deals
with how a freezing order is made by the Magistrates' Court, to
provide that the Court may make a freezing order which has been
applied for under new section 31D(1B) if there are reasonable
grounds for suspecting the matters set out in that subsection.
Clause 14 substitutes a new section 36J of the Confiscation Act 1997.
Section 36J of the Act provides that property may be subject to a
civil forfeiture restraining order as well as other orders made
under the Act. The amendments contained in this Bill will
introduce a new order that can be obtained under the Act, an
unexplained wealth restraining order.
The new section 36J will make clear that property can be subject
to a civil forfeiture restraining order, as well as one or both of a
restraining order under Part 2 and an unexplained wealth
restraining order.
New section 36J(2) outlines the circumstances in which a civil
forfeiture restraining order, made in relation to the same item of
property in relation to which another restraining order is made,
will cease to operate.
Clause 15 amends section 36K(4) of the Confiscation Act 1997 to make
clear that an application for an unexplained wealth restraining
order in relation to property or an interest in property does not
preclude an application for a civil forfeiture restraining order
being made in relation to the same property or interest in
property.
Clause 16 inserts a new Part 4A into the Confiscation Act 1997, which will
contain provisions relating to the new unexplained wealth
scheme.
New section 40C provides for various matters relating to the
operation of unexplained wealth restraining orders. This
provision is similar to current section 36H, which deals with civil
forfeiture restraining orders.
New section 40D outlines the purpose for which an unexplained
wealth restraining order can be made. This purpose is to ensure
that the restrained property will be available to satisfy
unexplained wealth forfeiture that may occur under Division 2 of
new Part 4A.
New section 40E clarifies that the same property may be subject
to both an unexplained wealth restraining order and one or more
other restraining orders made under the Act. New section 40E(2)
8
outlines the circumstances in which an unexplained wealth
restraining order, made in relation to the same item of property as
another restraining order, ceases to operate.
New section 40F outlines the process by which the DPP, or an
appropriate officer, may apply for an unexplained wealth
restraining order. There are two grounds under which an
application for an unexplained wealth restraining order can be
made.
New section 40F(1) outlines the first basis on which an
application can be made. This subsection states that an
application can be made in respect of property if a police
officer suspects on reasonable grounds that a person with an
interest in the property has engaged in serious criminal activity.
Paragraph (c) provides that if the property sought to be restrained
is located outside Victoria, the serious criminal activity must
have occurred in Victoria. Paragraph (d) provides that the
property sought to be restrained must be valued at $50 000 or
more.
New section 40F(2) outlines the second basis on which an
application can be made. This subsection states that an
application can be made in respect of property if a police officer
suspects on reasonable grounds that the property was not lawfully
acquired and either the property is located in Victoria or the
person who acquired the property is ordinarily resident in
Victoria.
New sections 40F(3) and (4) provide that an application under
the above subsections must be supported by an affidavit, and
outline what must be included in such an affidavit.
New section 40F(5) makes clear that an application under
section 40F(1) (based on a reasonable suspicion that a person has
engaged in serious criminal activity) does not need to specify a
particular offence that constitutes the serious criminal activity,
but if it does so specify, may specify more than one particular
offence.
New section 40F(6) makes clear that property in which a person
has an interest includes property that is subject to that person's
effective control and any property that was the subject of a gift
from that person. This means that if a restraining order is sought
based on a person's suspected serious criminal activity, that
restraining order might cover property that the person has
previously given away, and property that a person has effective
control over, even where that person has no legal interest in that
property.
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New sections 40F(7) to (9) clarify various matters in relation to
the operation of multiple restraining orders in relation to the same
property or based on the same suspicion of criminal activity.
New Section 40G describes a range of circumstances in which
property will and will not be considered to have been "lawfully
acquired" for the purposes of new Part 4A. Subsection (2) of this
section makes clear that this list is not meant to be an exhaustive
list of criteria to determine the lawful acquisition of property.
New section 40G(1)(a) provides that where property has been
acquired by a person for sufficient consideration, that property is
only lawfully acquired by that person if the consideration itself
was lawfully acquired. For example, if a person buys a house
(house A) with cash which he or she received from the sale of a
different house (house B), house A is only lawfully acquired if
the cash was lawfully acquired, which in turn requires that
house B was lawfully acquired. If house B was purchased for
sufficient consideration, this requires that that consideration be
lawfully acquired. If it cannot be shown that house B was
lawfully acquired, then house A is taken not to have been
lawfully acquired.
New section 40G(1)(b) provides that where property is acquired
otherwise than for sufficient consideration, then it is taken only
to have been lawfully acquired if the person from whom it
was acquired it had acquired it lawfully. So, in the above
example, if house B was in fact a gift, it would be necessary to
show that the donor of the gift had lawfully acquired house B.
Otherwise, house A is taken not to have been lawfully acquired.
Paragraphs (c) to (e) provide additional criteria to determine
whether property acquired as a prize, investment income, or
salary is property lawfully acquired.
New section 40G(1)(f) provides that derived property (as defined
in section 7A of the Act) is not to be considered lawfully
acquired unless it was purchased for sufficient consideration and
the person who acquired the property did not know and the
circumstances were such as not to arouse a reasonable suspicion
that it was derived property. New subsection (3) states that
despite this provision, a person who acquires property from
the sale of property under the Act has lawfully acquired the
property provided the consideration paid was lawfully acquired.
This provision ensures that where derived property is confiscated
by the State and then sold under the provision of the Act, a
purchaser of the property can be taken to have lawfully acquired
the property despite the property being derived property.
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New section 40H provides for the procedures to be followed
on application for an unexplained wealth restraining order.
This provision is similar to current section 36L, which provides
the procedure on application for a civil forfeiture restraining
order. This section outlines how the court is to determine
whether notice is provided to a person who may be affected by an
unexplained wealth restraining order. This provision reflects that
in many circumstances it will be appropriate not to give notice to
a person affected by the order, in order to prevent dissipation of
property prior to restraint, or to protect an ongoing police
investigation.
New section 40I outlines how the court is to determine an
application for an unexplained wealth restraining order.
This section provides that the court must make the order if
satisfied that the deponent of the affidavit does suspect the
matters relied upon in seeking the order, and is satisfied that there
are reasonable grounds for this suspicion. In the case of a
restraining order sought under section 40F(1) the court need not
be satisfied that there are reasonable grounds to suspect that the
property is valued at $50 000 or more (provided the deponent of
the affidavit is so satisfied). This is to ensure that proceedings
for a restraining order are not unduly complicated by matters
relating to the valuation of property.
New section 40I(2)(b) provides that where an application is made
under section 40F(1) and more than one particular offence is
specified as constituting "serious criminal activity", the court
need not be satisfied that there are reasonable grounds to suspect
that the conduct of the person constitutes all of those offences.
New section 40I(4) provides guidance as to how a court is to
determine whether there are reasonable grounds to suspect
property was not lawfully acquired. This is not intended to be an
exhaustive list of matters to which the court may have regard.
New section 40J provides that if an unexplained wealth
restraining order is made in relation to property, the applicant for
the order must give notice to any person with an interest in the
property who has not otherwise previously received notice.
New section 40K requires a police officer to give to each person
with an interest in property subject to an unexplained wealth
restraining order a notice requiring that person to give to police a
declaration of their interest in the property.
New section 40L specifies what must be included in a
declaration of interest in property required by a notice issued
under section 40K. This is similar to current section 36P which
applies to civil forfeiture restraining orders.
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New section 40M provides that if an unexplained wealth
restraining order is made under section 40I(1), a police officer
may give a notice to the person suspected of serious criminal
activity, requiring that person to make a declaration of that
person's property interest. This notice differs from a notice
issued under section 40K as it relates to all of the person's
property interests, rather than just property subject to the
unexplained wealth restraining order.
New section 40N specifies what must be included in a
declaration of property interests made in response to a notice
issued under section 40M.
New section 40O creates an offence for failing to comply with a
notice issued under section 40K or section 40M. The section
provides that a person has 14 days to comply with a notice issued
under section 40K and 28 days to comply with a notice issued
under section 40M.
New section 40P(1) provides that if a person is convicted of one
of the offences in new section 40O, the court that convicts that
person must direct the person to provide the information required
by the notice issued under section 40K or 40M. Section 40P(2)
provides that a person convicted of any other offence, who has
not complied with such a notice, must be directed by the court
that convicted him or her to respond to the notice.
New section 40Q(1) provides that a statement made by a person
in response to a section 40K or 40M is not admissible against
that person, other than in proceedings for making a false
or misleading statement, or proceedings under the Act.
New section 40Q(2) further provides that information derived
from such a statement is also inadmissible, other than in
proceedings for making a false or misleading statement, or
proceedings under the Act.
New section 40R provides that a person claiming an interest in
property restrained by an unexplained wealth restraining order
may apply to the court that made the order seeking an order
under new section 40S to exclude property from the restraining
order. An application under this section must be made within
90 days of the person receiving notice of the restraining order.
New section 40S outlines the procedure for the determination of
an application for exclusion from an unexplained wealth
restraining order. Subsection (1) provides that the court may
make an exclusion order in respect of property if satisfied that the
property was lawfully acquired by the applicant. Subsection (2)
provides that property is presumed not to be lawfully acquired
unless the applicant proves otherwise. Subsection (3) provides
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that if an exclusion order is made, it does not take effect until at
least 30 days after the making of the order. This means the
property remains restrained during this time. This is to allow
time for an application for a substitution order to be made under
new section 40U.
New section 40T outlines the evidentiary requirements that apply
to an applicant for an exclusion order. Subsection (1) provides
that the applicant for the order must provide documentary
evidence of any transactions he or she alleges to have occurred in
establishing that property was lawfully acquired. For example, if
the applicant alleges lawful purchase of a motor vehicle, he or
she would be required to produce a receipt or other paperwork
that was generated at the time of the transaction.
Subsection (2) provides the court with the discretion to accept
evidence other than documentary evidence in certain
circumstances. Paragraph (a) allows the court to accept other
evidence if it is provided in conjunction with documentary
evidence. For example, the applicant may provide a receipt for a
motor vehicle along with oral evidence about the circumstances
in which the purchase was made. Paragraph (b) allows the court
to accept other evidence if satisfied it is not reasonable to expect
documentary evidence. For example, the court may accept other
evidence relating to the purchase of a motor vehicle if the
applicant can establish it is not reasonable to expect documentary
evidence because the purchase occurred many years ago.
New section 40U outlines the procedure by which the applicant
for an unexplained wealth restraining order may apply for what
is known in this Part of the Act as a substitution order.
A substitution order is a mechanism to prevent a person dealing
with property in a way that would frustrate the operation of an
unexplained wealth restraining order. A person who holds
criminal wealth may do so in a way that would frustrate any
potential confiscation action, for example by holding assets
overseas or in any way that would prevent practical realisation of
the assets in the event those assets were forfeited to the State.
Such a person may also hold assets in a form more readily
realisable, for example in local real property or bank accounts.
In these circumstances, the person may exclude the locally held
assets by being able to explain their lawful origin, but make no
effort to explain the assets that they consider will not be able to
be effectively confiscated by the State. This new provision will
allow the applicant for the unexplained wealth restraining order
to "substitute" the excluded property for the restrained property,
to ensure the person is compelled to explain the lawful origin of
all of their property.
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New section 40V outlines how a court is to determine whether to
make a substitution order. The section provides that if a
substitution order is made, the property that was previously
excluded from the order is no longer excluded, and the restrained
property for which it was substituted is now excluded from the
restraining order.
New section 40W provides that the court may make any further
orders in relation to property subject to an unexplained wealth
restraining order that it considers just. These orders can be made
when the unexplained wealth restraining order is made, or at any
other time.
New section 40X provides that the applicant for the unexplained
wealth restraining order may apply to the court that made the
order for an order setting aside the unexplained wealth restraining
order. The court can make such an order if satisfied the
unexplained wealth restraining order is no longer required.
New section 40Y provides for the registration of an unexplained
wealth restraining order on the relevant registers of property
maintained under Victorian law.
New Section 40Z creates an offence for the knowing
contravention of an unexplained wealth restraining order.
The penalty for the offence is level fine imprisonment or a
maximum fine equal to the greater of 1200 penalty units or the
value of the interest dealt with contrary to the terms of the
unexplained wealth restraining order (or both).
New section 40ZA provides that property subject to an
unexplained wealth restraining order is forfeited to the Minister
six months after the making of the order. Subsection (2) provides
that this forfeiture does not occur in relation to property subject
to an application for exclusion whilst that application is pending.
New section 40ZB provides that the applicant for an unexplained
wealth order may apply to the court that made the order for a
declaration that forfeiture has occurred under section 40ZA.
The purpose of the declaration is to provide clarity that forfeiture
has occurred. The forfeiture occurs automatically once the
conditions in section 40ZA are met and is not reliant on a
declaration being made under section 40ZB.
New section 40ZC provides that if property is forfeited to the
Minister under section 40ZA, a person who had an interest in that
property may seek to have that property excluded from forfeiture.
Such an application must be made within 60 days of forfeiture
occurring, and can only be made with leave of the court.
This section is to provide an opportunity for a person to seek
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exclusion if that person has for some reason or another failed to
previously seek exclusion under section 40S of the Act.
New section 40ZD outlines how the court is to determine an
application for exclusion made under section 40ZC.
Subsection (3) provides that the evidentiary requirements
specified in section 40T also apply to an application under
section 40ZC.
Clause 17 amends sections 41(2), 41(3), and 41(4) of the Confiscation Act
1997 to include property forfeited under new section 40ZA as
inserted by clause 16.
Clause 18 amends section 42(1) of the Confiscation Act 1997 to confer on
the Supreme Court or County Court the power to discharge a
mortgage or charge over property forfeited under new
section 40ZA as inserted by clause 16.
Clause 19 amends section 43 of the Confiscation Act 1997, which provides
for the court to make an order directing a person to take control
of forfeited property to include property forfeited under new
section 40ZA as inserted by clause 16.
Clause 20 amends section 44 of the Confiscation Act 1997, which
provides for the disposal of forfeited property to include property
forfeited under new section 40ZA as inserted by clause 16.
These amendments add references to unexplained wealth
forfeiture and unexplained wealth exclusion orders under Part 4A
as inserted by clause 16.
New sections 44(3)(d) and 44(3B) specify the circumstances in
which the prohibition against the Minister disposing of or
otherwise dealing with the property or authorising another
person to dispose of or deal with the property no longer applies.
This ensures that the property is not disposed of before the end of
the relevant appeal period.
Clause 21 inserts new section 45B in the Confiscation Act 1997, which
provides for a person to apply to the court for relief from the
forfeiture of property under new section 40ZA as inserted by
clause 16. Any person who is likely to experience undue
hardship from the forfeiture of property under new section 40ZA
may apply to the court within 60 days for relief. The category of
person who can apply for relief is open in recognition of the
complex social, family and business relationships that exist in the
community.
15
New section 45B(4) provides that the court may order a person to
be paid a specified amount from forfeited property if satisfied
that the person will suffer undue hardship from the forfeiture of
property. The court will need to be satisfied that there is
something more than the ordinary hardship that flows from the
deprivation of property before ordering relief. The court must
not make an order for relief if there is an exclusion application
pending under new section 40ZD as inserted by clause 16.
Clause 22 inserts new section 48A of the Confiscation Act 1997, which
provides for the discharge of unexplained wealth forfeiture in
respect of an interest in property. It sets out two circumstances in
which an interest is discharged, where an interest is the subject
of an exclusion order under new section 40ZD as inserted by
clause 16, and where a person has purchased back the interest
under section 56 and 57 of the Confiscation Act 1997.
The intention is that a person will have the opportunity to buy
back an interest in property forfeited to the Minister.
Clause 23 amends section 55 of the Confiscation Act 1997, which provides
for the return of property or payment of the value of forfeited
property to apply to property forfeited, discharged or excluded
under new Part 4A as inserted by clause 16.
Clause 24 amends sections 56 and 57 of the Confiscation Act 1997, which
provides for the buy back of an interest in forfeited property to
include property forfeited under new Part 4A as inserted by
clause 16.
Clause 25 amends sections 75(1) and 75(2) of the Confiscation Act 1997,
which provides for a liability under a forfeiture order or
pecuniary penalty order to be satisfied by trustee to include
unexplained wealth restraining orders and unexplained wealth
forfeiture under new Part 4A as inserted by clause 16.
Clause 26 amends section 76 of the Confiscation Act 1997, which provides
for trustee powers in respect of restrained property to include
property subject to an unexplained wealth restraining order under
new section 40I as inserted by clause 16.
Clause 27 amends section 78A(1)(b) of the Confiscation Act 1997, which
provides for a law enforcement agency and the Secretary to enter
into an memorandum of understanding for the transfer of
property management powers and responsibilities under the Act
16
to include property restrained under new section 40I as inserted
by clause 16.
Clause 28 amends section 97A(1) of the Confiscation Act 1997 to provide
for a prescribed person to apply for a search and inspection
warrant for property that is subject to an unexplained wealth
restraining order under new section 40I as inserted by clause 16.
Clause 29 amends section 97B(5)(c) of the Confiscation Act 1997 to
require a search and inspection warrant to state whether an
unexplained wealth restraining order relates to the property.
Clause 30 amends section 98 of the Confiscation Act 1997, to confer on
the court the power to examine any person if satisfied that
property is subject to restraint under new section 40I as inserted
by clause 16. New section 98(2B) clarifies that the court
can examine the person on the affairs of any person, and is
not limited to matters relating to restrained property.
New section 98(3)(c) provides that an application for an
examination order must be made to the court that made the
unexplained wealth restraining order under new section 40I.
Clause 31 makes a minor change to the heading of section 100 of the
Confiscation Act 1997 to clarify that these provisions relate to
an application for a production notice where a person has been
convicted of a relevant offence or a police officer believes that a
person has committed a relevant offence.
Clause 32 inserts new section 100A of the Confiscation Act 1997 to
provide for the making of an application for a production order
where a police officer suspects a person has engaged in serious
criminal activity. This provision mirrors the procedural
requirements set out in section 100.
Clause 33 amends section 101 of the Confiscation Act 1997, which
provides for the making of a production order to include an
application for a production order under new section 100A.
Clause 34 amends section 115(2)(a) of the Confiscation Act 1997, which
provides for an application for a monitoring order to include as a
ground that a person has engaged in serious criminal activity.
17
Clause 35 amends section 118D(2)(a) of the Confiscation Act 1997 to
enable a police officer to issue an information notice to a
financial institution on the grounds that he or she reasonably
believes that a person with an interest in an account has engaged
in serious criminal activity.
Clause 36 amends sections 118E(3)(a), 119A(a)(ii) and 120A(2) of the
Confiscation Act 1997, to add references to an unexplained
wealth restraining order.
Clause 37 amends section 131(2) of the Confiscation Act 1997, which
provides for the return of seized property to a person where a
court refuses to make forfeiture order, civil forfeiture order or a
restraining order to include an unexplained wealth restraining
order under new section 40I as inserted by clause 16.
Clause 38 amends section 133A of the Confiscation Act 1997, to confer the
power on the court to award costs in respect of proceedings under
new Part 4A as inserted by clause 16.
Clause 39 amends section 135 of the Confiscation Act 1997, which sets out
reasonable conversion costs for the conversion into money of
property forfeited under Parts 3 and 4 to include property
forfeited under new Part 4A as inserted by clause 16.
Clause 40 amends section 139A(1)(d) of the Confiscation Act 1997 to
require the Commissioner of Police to report on the exercise of
powers under the Act in relation to proceedings instigated under
new Part 4A as inserted by clause 16.
Clause 41 amends section 143 of the Confiscation Act 1997 to extend the
court's power to order the provision of legal aid to a person
whose property is subject to an unexplained wealth restraining
order under new section 40I as inserted by clause 16.
Clause 42 inserts new section 189 of the Confiscation Act 1997 to provide
for the operation and effect of this Bill during the transitional
period to the new unexplained wealth regime. Subclause (1)
clarifies that the new unexplained wealth provisions apply to
serious criminal activity engaged in before or after the
commencement of section 16 of this Bill.
Subclause (2) clarifies that an unexplained wealth restraining
order may be made in respect of property not lawfully acquired
before the commencement of section 16 of the Bill.
18
Division 2--Equitable Sharing Program
Division 2 provides for the equitable sharing of money realised under a
forfeiture order, automatic forfeiture under sections 35 and 36GA, civil
forfeiture order, unexplained wealth forfeiture or pecuniary penalty order.
Equitable sharing arrangements recognise the contribution that other States or
Territories may make to a criminal investigation or proceedings under the
Confiscation Act 1997. Equitable sharing arrangements are likely to be
utilised where State and Territory law enforcement agencies participate in
multi-jurisdictional taskforces or provide assistance to Victoria to restrain
and dispose of forfeited property in that State's jurisdiction.
The Minister will have the sole discretion as to whether a payment is made
under the equitable sharing provisions. The Minister in deciding to make a
payment to another jurisdiction must be satisfied that they made a significant
contribution to the recovery of the property or amount. Any money not paid
under the equitable sharing arrangements or under section 75(1) of the
Confiscation Act 1997 will be directed to consolidated revenue.
Clause 43 repeals section 134(3) of the Confiscation Act 1997.
This subsection will be substantially re-enacted as section 134A
by the following clause.
Clause 44 inserts new sections 134A and 134B of the Confiscation Act
1997, to provide for the Minister to make payments to other
jurisdictions under an equitable sharing program.
New section 134A sets out the rules for payment of money
realised from forfeited property or received from another
jurisdiction under an equitable sharing arrangement.
Subsection (1) provides that all money realised from forfeited
property and money paid under another jurisdiction's equitable
sharing program is to be paid into the Consolidated Fund, subject
to the exceptions in subclause (2).
Subsection (2) provides that money realised from forfeited
property must not be paid into the Consolidated Fund if there is
money owing to a person or body under section 75(1) or to
another jurisdiction under an equitable sharing arrangement
under new section 134B.
New section 134B provides for an equitable sharing arrangement
with other jurisdictions that have reciprocal arrangements.
Subsection (1) confers on the Minister the power to direct a
payment to be made to another jurisdiction out of forfeited
property.
19
Subsection (2) provides that the Minister can only direct a
payment to another jurisdiction that has an equitable sharing
arrangement with Victoria and the Minister is of the opinion that
the jurisdiction has made a significant contribution to the
recovery of the property or amount. A significant contribution
can include the provision of criminal intelligence, or assistance
with restraining or forfeiting property within that State's
jurisdiction.
Subsection (3) gives the Minister the discretion to determine the
amount paid to another jurisdiction. This provides the Minister
with flexibility to make payments that reflect the contribution of
the other jurisdiction, in particular to make a higher payment
where a State has been instrumental in recovery the property.
Subsection (4) provides that the Minister may not direct a
payment to another jurisdiction if the money is required to satisfy
a liability under section 75(1). This ensures that the State is able
to recoup the costs of appointing a trustee to manage and dispose
of restrained assets.
Subsection (5) provides that the definition of an equitable sharing
program refers to a reciprocal arrangement where Victoria may
make a payment to another State in recognition of that State's
contribution to the recovery of forfeited assets and where another
State can make a similar payment to Victoria.
Division 3--Other Amendments to Confiscation Act 1997
Clause 45 amends section 20 of the Confiscation Act 1997, which sets out
the procedures for making an application for an exclusion
application. New section 20(2A) requires that a person making
an application for an exclusion order must attach to that
application documents supporting their claims for exclusion.
These documents may include bank statements, probate
documents, transfer deeds or receipts. The provision of
documents upfront provides for an opportunity for the Director of
Public Prosecutions to enter into consent orders for the release of
restrained property on the ground that it is not criminal proceeds,
avoiding a costly court hearing.
Clause 46 amends section 22 of the Confiscation Act 1997, which sets out
the matters that the court must consider when making a
determination on an exclusion application. New section 22(1A)
provides that the court may accept other forms of documentary
evidence in certain circumstances. This recognises that some
applicants may not be able to provide independent documentary
20
evidence as to the source of their interest in restrained property
through no fault of their own. For example, a person may be the
recipient of a priceless heirloom from a family member.
Clause 47 amends section 36Z of the Confiscation Act 1997 to make it
consistent with section 29 of that Act.
PART 3--AMENDMENT OF CRIMINAL ORGANISATIONS
CONTROL AND OTHER ACTS AMENDMENT ACT 2014
Clause 48 amends section 125 of the Criminal Organisations Control and
Other Acts Amendment Act 2014 (currently a Bill before the
Parliament), which inserts a new Part 5A in the Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997. Clause 148
inserts a new section 38ZAA, which will provide that the
Director of Public Prosecutions may appeal against an order
made under section 38Y(4)(b) of the Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997 for the
unconditional release of a person.
PART 4--AMENDMENT OF JUDICIAL PROCEEDINGS
REPORTS ACT 1958
Clause 49 amends section 4 of the Judicial Proceedings Reports Act 1958
concerning the prohibition on the reporting of matter containing
particulars likely to lead to the identification of a person against
whom a sexual offence is alleged to have been committed.
Sexual offence is defined in section 4(1) of the Judicial
Proceedings Reports Act 1958.
Subclause (1) substitutes the definition of publish in section 4(1)
of the Judicial Proceedings Reports Act 1958 with a new
definition of publish based on that used in the Open Courts
Act 2013. This substitution will clarify that the offence in
section 4(1A) of the Judicial Proceedings Reports Act 1958
covers a wide range of disclosures made to the public or a section
of the public. The definition will continue to exclude disclosures
for a purpose connected with a judicial proceeding.
Subclause (2) inserts definitions of the Judicial College of
Victoria and the Sentencing Advisory Council into section 4(1)
of the Judicial Proceedings Reports Act 1958.
Subclause (3) inserts new section 4(1D) into the Judicial
Proceedings Reports Act. This will provide that section 4 of the
Judicial Proceedings Reports Act 1958 does not prevent a
21
disclosure of information made for the purpose of enabling the
Judicial College of Victoria or the Sentencing Advisory Council
to carry out their statutory functions. This provision is intended
to facilitate efficient information sharing between the courts and
those entities about sentences in sexual offence cases.
PART 5--AMENDMENT OF JURIES ACT 2000
Clause 50 amends section 38 of the Juries Act 2000 to make clear that a
potential juror who has been required to stand aside by the Crown
under that section must not be empanelled on the jury in that trial,
and must return to the jury pool and may be selected to a panel in
another trial.
Clause 51 amends Schedule 6 to the Juries Act 2000 to make clear that the
amendment made by the above clause only applies to a jury panel
selected or allocated on or after the commencement of that
amendment.
PART 6--AMENDMENT OF PERSONAL SAFETY
INTERVENTION ORDERS ACT 2010
Clause 52 amends section 24 of the Personal Safety Intervention Orders
Act 2010, to insert a definition of the term Dispute Settlement
Centre of Victoria. This term is used in the new section 25A
which is inserted into the Act by clause 53 of this Bill.
Clause 53 inserts new section 25A to the Personal Safety Intervention
Orders Act 2010. This new section provides that the Dispute
Settlement Centre of Victoria may request documents from the
Magistrates' Court relating to an application for a personal safety
intervention order, where it is for the purpose of assessing
whether a matter is suitable for mediation.
PART 7--AMENDMENT OF ROAD SAFETY CAMERA
COMMISSION ACT 2011
Clause 54 amends section 10 of the Road Safety Camera Commissioner
Act 2011, which sets out the functions of the Road Safety
Camera Commissioner, to include a new function to provide
information about the road safety camera system in response to a
request for information from a person or body.
22
PART 8--AMENDMENT OF SENTENCING ACT 1991
Part 8 amends the Sentencing Act 1991 to make further provision for
community correction orders (CCO) made by the Magistrates' Court of
Victoria.
Clause 55 substitutes section 38(1)(a) of the Sentencing Act 1991 to set out
the new maximum length of a CCO the Magistrates' Court may
make in different circumstances. The amendment provides for
the period that a CCO made by the Magistrates' Court must
not exceed in respect of one, two, three or more offences.
New section 38(1)(a) provides that the period of a CCO made by
the Magistrates' Court must not exceed--
· in respect of one offence, 2 years; or
· in respect of 2 offences, 4 years; or
· in respect of 3 or more offences, 5 years.
Clause 56 inserts new section 41A into the Sentencing Act 1991.
New section 41A provides that the period of cumulative CCOs
made in respect of multiple offences committed at the same
time by the Magistrates' Court must not exceed five years.
For example, if the Magistrates' Court is sentencing an offender
for five offences and makes a 12 month CCO in respect of each
of those offences, the period of the cumulative CCOs will be
5 years, being equal to the 5 year limit set by new section 41A.
Clause 57 inserts new section 44(1B) into the Sentencing Act 1991.
New section 44(1B) provides that in sentencing an offender
under section 44, the Magistrates' Court must not impose a
sentence that exceeds in the whole 5 years.
For example, if the Magistrates' Court is sentencing an offender
for two offences, the court may make a CCO for a period of
3 years in addition to imposing a sentence of imprisonment with
a maximum term of imprisonment of 2 years in respect of the
offences as the sentence does not exceed the 5 year limit as
provided for under new section 44(1B).
Clause 58 inserts new section 156 into the Sentencing Act 1991 which is a
transitional provision. It provides that the amendments made to
the Sentencing Act 1991 by Part 8 apply to the sentencing of an
offender on or after the commencement of Part 8, irrespective of
when the offence was committed or the finding of guilt was
made.
23
PART 9--AMENDMENT OF SUMMARY OFFENCES ACT
1966
Part 9 introduces a new section 51A into the Summary Offences Act 1966,
which creates two new offences related to assaults on health practitioners.
Clause 59 inserts new section 51A into the Summary Offences Act 1966.
New section 51A creates two new offences that apply when the
victim is a registered health practitioner as defined in the Health
Practitioner Regulation National Law. A registered health
practitioner means an individual who is registered under the
Health Practitioner Regulation National Law to practise a
specified health profession other than as a student; or holds a
non-practising registration under the same Law in a health
profession. The term "health profession" is defined in the Health
Practitioner Regulation National Law to mean a specified list of
persons, which includes chiropractors, medical practitioners,
midwives, nurses and pharmacists, amongst others.
The offence in new section 51A(1) deals with assaults against
registered health practitioners employed or engaged to work in a
hospital. The offence in new section 51A(2) deals with assaults
against health practitioners who are employed or engaged at a
place other than a hospital.
The terms hospital, hospital premises, health practitioner and
registered health practitioner are defined in new section 51A(3).
New section 51A(1)
The offence will apply if at the time of the assault, the victim is
employed, self-employed or engaged to provide, or support the
provision of, care or treatment in a hospital to a person.
The victim must be in the hospital or on the hospital premises.
Hospital premises is defined to include parking areas, driveways,
courtyards and forecourts on the premises occupied by a hospital.
For example, the offence would apply if a person assaults a
registered health practitioner in the carpark of a hospital.
The offence includes a mental element whereby at the time of the
assault, the offender must have known or been reckless as to
whether the victim was a health practitioner. The offender is not
required to know the status of the health practitioner's
registration.
The offence attracts a penalty of 60 penalty units or
imprisonment for 6 months.
24
New section 51A(2)
The offence will apply if at the time of the assault, the victim is
employed, self-employed or engaged to provide, or support the
provision of, care or treatment to a person other than at a
hospital. The victim must also be providing care or treatment or
supporting the provision of care or treatment to a person in the
course of that employment, self-employment or engagement.
This means that the offence will not cover "off-duty" or
"after work" situations, for example, where a health practitioner
provides treatment and assistance to a fellow passenger waiting
at a train station. Similarly, a pharmacist will be providing or
supporting provision of care or treatment to a person in the
course of their employment, self-employment or engagement
if they are providing advice, or administering medication.
However if they are undertaking retail or business duties, such as
restocking the shelves, they will not fall within the scope of this
particular offence.
The offence is not location specific, which means that all
registered health practitioners providing or supporting the
provision of care or treatment to a person in the course of their
employment, self-employment or engagement will be covered by
the offence, regardless of where they are. For example, it will
cover assaults against health practitioners committed in private
consulting rooms, during home visits, and at public events.
The offence includes a mental element whereby at the time of the
assault, the offender must have known or been reckless as to
whether the victim was a health practitioner providing or
supporting the provision of care to a person in the course of their
employment, self-employment or engagement. The offender is
not required to know the status of the health practitioner's
registration.
The offence attracts a penalty of 60 penalty units or
imprisonment for 6 months.
Clause 60 amends the definition of hospital in section 51A(3) of the
Summary Offences Act 1966. This is a consequential
amendment to update the definition of hospital, which will
become redundant when the Private Health Care Facilities Act
2014, if passed, comes into operation. To provide for this,
clause 60 comes into operation on the later of the day on which
clause 59 comes into operation or the day on which section 3 of
the Private Health Care Facilities Act 2014 comes into
operation.
25
PART 10--AMENDMENT OF OTHER ACTS
Division 1--Complicity
Clause 61 amends the Confiscation Act 1997 consistent with the reforms to
the law of complicity in the Crimes Amendment (Abolition of
Defensive Homicide) Bill 2014 (currently before the Parliament)
and consequential amendments made in that Bill to the Drugs,
Poisons and Controlled Substances Act 1981.
The complicity reforms in new sections 323 to 324C of the
Crimes Act 1958 provide that a person who is involved in the
commission of an offence (for example, they assist the offence,
or enter into an agreement to commit the offence) is taken to
have committed the offence. These reforms abolish certain
aspects of common law doctrines such as aiding and abetting.
Accordingly, clause 7(9) of the Crimes Amendment (Abolition of
Defensive Homicide) Bill 2014 amends section 80(1) of the
Drugs, Poisons and Controlled Substances Act 1981 to remove
the references to aiding, abetting, counselling, procuring or
soliciting, so that section 80(1) applies only to a person who
incites a specified drug offence.
Subclause (1) replaces paragraph (d) of the definition of serious
drug offence in section 3(1) of the Confiscation Act 1997, to be
inserted by the Criminal Organisations Control and Other Acts
Amendment Bill 2014 (currently before the Parliament), with
new paragraphs (d) and (e).
Current paragraph (d) of the definition of serious drug offence
refers to sections 80(1) and 80(3)(b) of the Drugs, Poisons and
Controlled Substances Act 1981 and describes those sections as
"aiding and abetting etc." For clarity, this subclause separates
these references, to reflect that section 80(1) no longer refers to
aiding and abetting etc.
New paragraph (d) refers only to the offence of incitement under
section 80(1) of the Drugs, Poisons and Controlled Substances
Act 1981, where the offence incited is an offence specified under
paragraph (a) or (b) (that is, an offence under section 71 or 72 of
that Act).
New paragraph (e) refers to the offence of aiding, abetting,
counselling or procuring an offence outside Victoria under
section 80(3)(b) of the Drugs, Poisons and Controlled
Substances Act 1981, where the offence that is aided, abetted,
counselled or procured, if committed in Victoria, would be an
offence under section 71 or 72 of that Act. Section 80(3)(b)
26
continues to use the terms aiding, abetting, counselling and
procuring because the Crimes Act 1958 provisions do not apply
to persons in Victoria who are involved in offences outside
Victoria.
A person who aids, abets, counsels or procures an offence under
section 71 or 72 of the Drugs, Poisons and Controlled
Substances Act 1981 will continue to be covered by the
definition of serious drug offence. This is because
paragraphs (a) and (b) of the definition of serious drug offence
apply both to persons who actually commit offences under
section 71 or 72 of the Drugs, Poisons and Controlled
Substances Act 1981, and to persons who are taken to commit
such offences under the complicity reforms in the Crimes Act
1958.
Subclause (2) makes similar changes to clause 1(d) of Schedule 2
to the Confiscation Act 1997, which currently refers to both
sections 80(1) and 80(3)(b) of the Drugs, Poisons and
Controlled Substances Act 1981 and describes those sections as
"aiding and abetting etc.".
Subclause (2) replaces paragraph (d) with new paragraphs (d)
and (e) and makes changes similar to those explained in relation
to subclause (1) to ensure that the provision is consistent with the
changes to the law of complicity. In particular, the subclause
separates the reference to section 80(1) and 80(3)(b), to reflect
that section 80(1) no longer refers to aiding and abetting etc.
Clause 62 amends the notes to section 80(1) and (3) of the Drugs, Poisons
and Controlled Substances Act 1981 inserted by the Criminal
Organisations Control and Other Acts Amendment Bill 2014
(currently before the Parliament).
Subclause (1) deletes the words "aided, abetted, counselled,
procured, solicited, or" in the note at the foot of section 80(1).
This reflects the new complicity provisions and the amendments
to the body of section 80(1) made by the Crimes Amendment
(Abolition of Defensive Homicide) Bill 2014.
Subclause (2) removes the reference to "solicited or incited" in
the note at the foot of section 80(3). Section 80(3) does not apply
to persons who solicit or incite offences. These words were
included in the note in error.
Clause 63 amends section 10AA(6) of the Sentencing Act 1991, inserted
by the Sentencing Amendment (Emergency Workers) Bill 2014
(currently before the Parliament), for consistency with the new
complicity reforms.
27
Subclause (1) replaces the reference to "aids, abets, counsels or
procures" in section 10AA(6)(a) of the Sentencing Act 1991
with a reference to being involved in the commission of the
offence within the meaning of new section 323(1)(a) or (b) of the
Crimes Act 1958.
Subclause (2) repeals the note at the foot of section 10AA(6)(a)
of the Sentencing Act 1991, which is no longer necessary given
that the section will specifically refer to the relevant Crimes Act
1958 provisions.
Clause 64 amends Schedule 1 to the Sentencing Act 1991 consistent with
the reforms to the law of complicity in the Crimes Amendment
(Abolition of Defensive Homicide) Bill 2014 and the
consequential amendments to the Drugs, Poisons and
Controlled Substances Act 1981 made in that Bill.
Clause 4(a)(vi) of Schedule 1 currently refers to both
sections 80(1) and 80(3)(b) of the Drugs, Poisons and
Controlled Substances Act 1981 and describes those sections as
"aiding and abetting etc.". As explained, in relation to clause 61
of the Bill, the general complicity provisions to be inserted in the
Crimes Act 1958 by the Crimes Amendment (Abolition of
Defensive Homicide) Bill 2014 will now apply where a person is
involved in a drug offence and section 80(1) of the Drugs,
Poisons and Controlled Substances Act 1981 will apply only to
a person who incites a specified drug offence.
Clause 4(a)(vi) of Schedule 1 to the Sentencing Act 1991 refers
to section 80(1) and 80(3)(b). Clause 64 replaces this with new
paragraphs (vi) and (via), which separate the reference to
section 80(1) and 80(3)(b), to reflect that section 80(1) no longer
refers to aiding and abetting etc. This approach is consistent with
the changes made to the Confiscation Act 1997 in clause 61.
Division 2--Amendment of Professional Boxing and Combat
Sports Act 1985
Clause 65 substitutes paragraph (f) of the definition of prohibited person in
section 5 of the Professional Boxing and Combat Sports Act
1985, to provide that a person who has been convicted of an
offence against a law of the Commonwealth or another State or a
Territory and given a sentence corresponding to the sentence
specified in paragraph (a) of the definition (that is, sentenced to a
term of imprisonment of 10 years or more) is a prohibited person.
Currently paragraph (f) of the definition of prohibited person
provides that a person convicted of an offence and given a
28
sentence of a kind corresponding to that specified in
paragraph (a) of the definition in another State or Territory is
a prohibited person.
The definition of prohibited person sets out the circumstances
where the Professional Boxing and Combat Sports Board must
not issue or renew a licence to act as a promoter, match-maker,
referee, judge, trainer or timekeeper in relation to professional
boxing and combat sports contests in Victoria. Also, the
Professional Boxing and Combat Sports Board must immediately
cancel any such licence issued or renewed by the Board if it
becomes aware that a licence holder is a prohibited person.
Division 3--Amendment of Sentencing Amendment (Emergency
Workers) Act 2014
Clause 66 substitutes the commencement provision of the Sentencing
Amendment (Emergency Workers) Act 2014, which is
currently a Bill before the Parliament. New section 2 will deal
with the commencement of provisions of the Sentencing
Amendment (Emergency Workers) Act 2014, if passed.
New section 2(1) provides that Division 4 of Part 2 of that Act
comes into operation on the later of the day on which section 4 of
the Act comes into operation, or the day on which section 3 of
the Private Health Care Facilities Act 2014 comes into
operation. Division 4 of Part 2 makes an amendment to update a
definition that will become redundant when, if passed, the
Private Health Care Facilities Act 2014 comes into operation.
New section 2(2) and (3) provide that the remaining provisions of
that Act come into operation on a day or days to be proclaimed,
or, if not earlier than 1 July 2015, on that date.
Clause 67 amends section 4 of the Sentencing Amendment (Emergency
Workers) Act 2014, which, if passed, will amend the
Sentencing Act 1991 to insert a new section 10AA into that Act.
New section 10AA currently contains a definition of the term
hospital for the purposes of the section, which includes a
reference to the Private Health Care Facilities Act 2014.
This clause will amend the section by removing this definition
and replacing it with a definition of hospital that refers to the
Health Services Act 1988.
This amendment is necessary as this section may come into
operation before the provisions of the Private Health Care
Facilities Act 2014, if passed, come into operation.
29
Clause 68 amends Part 2 of the Sentencing Amendment (Emergency
Workers) Act 2014 by inserting a new Division 4 to that Part.
The new Division 4 will make a consequential amendment to
section 10AA of the Sentencing Act 1991 to update the
definition of hospital for the purposes of that section to include a
reference to the Private Health Care Facilities Act 2014.
Clause 66 provides that this amendment will not come into
operation before the relevant provisions of the Private Health
Care Facilities Act 2014 come into operation.
Division 4--Amendment of Crimes Act 1958
Clause 69 inserts a new section 465AA into the Crimes Act 1958. This new
section will allow the Magistrates' Court to make an order
requiring a person to assist police in relation to accessing,
copying or converting data held in or accessible from a computer
or data storage device.
New section 465AA(1) provides that the section applies where a
magistrate has issued a search warrant under section 465 of the
Crimes Act 1958. This subsection defines the "warrant
premises" as the place, building or object to which the warrant
applies.
New section 465AA(2) provides that, on the application of a
police officer of or above the rank of senior sergeant, the
Magistrates' Court may make an order requiring a specified
person to provide any information or assistance that is reasonable
and necessary to allow a police officer to do one or more of the
things specified in subsection (3). This level of seniority is also
required for making an application for a warrant under
section 465 of the Crimes Act 1958.
Subsection (3) then identifies those things as--
· accessing data held in, or accessible from, a computer or
data storage device;
· copying such data; and
· converting such data or copied data into documentary
form or another form intelligible to a police officer.
Subsection (3) does not require the data to be held in Victoria.
It is sufficient if the data can be accessed from a computer or data
storage device in Victoria. This is important as data servers may
be located outside of Victoria, but accessed by a person using a
computer or data storage device within Victoria.
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New section 465AA(4) provides that an application for such an
order may be made at the same time as the application for the
search warrant is made or at any time after. Sometimes it will
only become apparent after a warrant is executed that data is held
on the warrant premises and police cannot access the data.
New section 465AA(5) provides that the court may make the
order if satisfied that--
· there are reasonable grounds for suspecting that the data
will afford evidence as to the commission of an
indictable offence; and
· the specified person is either reasonably suspected of
having committed an indictable offence in relation to
which the warrant was issued or has some other relevant
relationship to the computer or device (such as owner,
user, system administrator etc.); and
· the person has relevant knowledge of the computer or
device or the measures applied to protect the relevant
data.
New section 465AA(6) provides that a person is not excused
from complying with the order on the ground that compliance
may provide information that might incriminate the person.
This expressly limits the right to self-incrimination.
New section 465AA(7) provides that an order is no longer
effective once the warrant has been executed. The effect of this
is that the police can use this new order while at the warrant
premises executing the warrant. However, a further order can be
made if needed.
New section 465AA(8) provides that if the computer or storage
device is not on the premises covered by the warrant, then the
order must specify the period within which and the place at
which the person must provide the information or assistance and
may specify that conditions apply to the information or assistance
provided.
New section 465AA(9) provides that a person commits an
offence if they do not comply with the order, without reasonable
excuse, where they have relevant knowledge and are informed by
a police officer of the order and of the fact that it is an indictable
offence to fail to comply.
New section 465AA(10) provides that the maximum penalty for
this offence is 5 years imprisonment.
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New section 465AA(11) provides that key terms relevant to this
section are defined in section 247A(1) of the Crimes Act 1958,
which deals with computer offences.
Clause 70 inserts a transitional provision into the Crimes Act 1958 which
provides that section 465AA applies with respect to a warrant
issued under section 465 irrespective of whether the warrant
issued under section 465 was issued before or after section 69 of
the Justice Legislation Amendment (Confiscation and Other
Matters) Act 2014 commenced.
Division 5--Statute law revision
Clause 71 makes a statute law revision amendment to section 10A(2)(d) of
the Sentencing Act 1991 by replacing the term "hospital security
order" with "Court Secure Treatment Order". This change
is necessary as a result of the Mental Health Act 2014.
Other references to "hospital security order" in the Sentencing
Act 1991 were amended consequentially to "Court Secure
Treatment Order" by the Mental Health Act 2014.
PART 11--REPEAL
Clause 72 provides for the automatic repeal of the amending Bill on 1 July
2016. The repeal of the Bill does not affect the operation of the
amendments made by the Bill, in accordance with section 15(1)
of the Interpretation of Legislation Act 1984.
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