Victorian Current Acts

CONFISCATION ACT 1997 - SECT 40B

    (1)     On an application made under section 40A, the court may make an order excluding the applicant's interest in property from the operation of a civil forfeiture order—

        (a)     if the court is satisfied that—

              (i)     the interest in the property is not derived property; and

              (ii)     the interest in the property is not tainted property; or

        (b)     if the court is not satisfied that the property in which the applicant claims an interest is not tainted property or derived property but is satisfied that—

S. 40B(1)(b)(i) substituted by No. 55/2014 s. 13(1)(a).

              (i)     the applicant was not, in any way, involved in the commission of any relevant Schedule 2 offence; and

S. 40B(1)(b)(ii) substituted by No. 55/2014 s. 13(1)(a).

              (ii)     where the applicant acquired the interest before the commission, or alleged commission, of the relevant Schedule 2 offences, the applicant did not know that the property—

    (A)     would be, or was intended to be, used in, or in connection with, the commission of any of those offences; or

    (B)     was likely to be, or intended to be, used in, or in connection with, the future commission of any of those offences; and

S. 40B(1)(b)(iii) amended by No. 55/2014 s. 13(1)(b).

              (iii)     where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the relevant Schedule 2 offences, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property or derived property; and

              (iv)     the applicant's interest in the property—

    (A)     was not subject to the effective control of another person on the date that the civil forfeiture order was made in relation to the property; or

    (B)     was subject to the effective control of another person on the date that the civil forfeiture order was made in relation to the property but the person in effective control satisfies subparagraphs (i) to (iii) as if a reference in those subparagraphs to the applicant were a reference to the person in effective control; and

              (v)     where the applicant acquired the interest, directly or indirectly, from another person that—

    (A)     it was acquired for sufficient consideration; or

    (B)     if it was not acquired for sufficient consideration, the person from whom the interest was acquired satisfies subparagraphs (i) to (iii) as if a reference in those subparagraphs to the applicant were a reference to the person from whom the interest was acquired.

    (2)     If the court makes an exclusion order under subsection (1), it may also make an order declaring the nature, extent and value of the applicant's interest in the property.

S. 40B(3) inserted by No. 55/2014 s. 13(2).

    (3)     In this section—

relevant Schedule 2 offence means a Schedule 2 offence in relation to which the civil forfeiture restraining order was made.

Pt 4A (Headings and ss
40C–40ZD) inserted by No. 79/2014 s. 16.

Part 4A—Unexplained wealth

Division 1—Unexplained wealth restraining orders

S. 40C inserted by No. 79/2014 s. 16.