Victorian Proceeds of Crime Confiscation Legislation Strengthened

The Confiscation and Other Matters Amendment Act 2016 (No 27 of 2016) (the Amending Act) received assent in Victoria on 31 May 2016. The amending Act is described by the Government, in the Minister's second reading speech, as containing a number of "small, but important, amendments" to various items of Victorian Legislation targeted at serious and organised crime. The targeted legislation includes the Confiscation Act 1997 (Vic), the Criminal Organisations Control Act 2012 (Vic), and the Surveillance Devices Act 1999(Vic). There is also a consequential amendment to the Family Violence Protection Amendment Act 2014.

Background - Previous Changes to Confiscation Laws

The last major amendments to the Confiscation Act 1997 were those contained in the Justice Legislation Amendment (Confiscation and Other Matters) Act 2014 (No 79 of 2014) in which the former Napthine Victorian Government made controversial changes involving a reversal of the usual criminal onus, by making it the person or persons claiming ownership obligation to come forward and ". . . demonstrate the lawful origins of the property" (for more on these previous changes see our article: New Victorian Laws on Seizure of Unexplained Criminal Wealth: A Reversal of Onus). These amendments and the current ones indicate the increasing reliance being placed by government and law enforcement on asset confiscation as a way of disrupting criminal activity. In the second reading speech the Minister states:

The Minister goes on to claim that Victoria ". . . now has one of Australia's most comprehensive sets of confiscation laws, contained in the Confiscation Act 1997."

Latest Changes to the Confiscation Act 1997

The amendments made by the Amending Act to the Confiscation Act 1997 are described by the Government as not being significant alterations to the laws, but instead being technical amendments which aim to strengthen the laws against ". . . any possible attempts to evade their operation".

One area of amendment that removes the possibility of evasion, is by making it clear that if a person purchases a house with a loan, and then repays that loan with the proceeds of crime, that house is "not" to be considered "lawfully acquired".

The amendment is said to be in response to an interstate court ruling in relation to the Federal asset confiscation laws which has created doubt about the application of the laws.

Other procedural amendments in the amending Act are for the purpose of improving the efficiency of the asset confiscation scheme according to the Minister.

One of these amendments relates to who can apply for confiscation orders. At present, applications for more serious crimes are made by the Director of Public Prosecutions (DPP) while the Police can apply directly in the case of less serious matters. This, it is said by the Government, leaves a range of crimes of a "mid-level of seriousness" which are prosecuted by the Police but for which confiscation orders can only be sought by the DPP. This anomaly is corrected in the Amending Act by ensuring that the Police can apply for confiscation orders in relation to "any crime" they prosecute.

Other amendments that improve the efficiency of the confiscation scheme. The Confiscation Act 1997 allows the Police to seek certain orders by fax or email, rather than in person, saving time and removing the opportunity in which a person could put assets beyond the reach of Police.

Also the Act makes it clear that when the Police issue a notice to a bank seeking information about accounts held by a person, the terms of the notice extend ". . . both to accounts currently held by that person and accounts held but recently closed by a person".

Other Legislation Changed by the Amending Act

The Criminal Organisations Control Act 2012 which establishes a scheme under which the Police can seek control orders that restrict the activities of organisations involved in serious and organised crime, is amended by the Amending Act to consolidate the two types of declaration which can be made against organisations, namely, prohibitive and restrictive declarations into one, to which the civil standard of proof applies. This simplifies the declaration provisions in the Criminal Organisations Control Act 2012 and removes the anomaly of applying the criminal standard of proof to an application for a declaration, which is a civil proceeding which carries no threat of immediate criminal sanction. However, the criminal standard of proof will continue to apply when determining whether a person or organisation has breached a control order, an offence which does carry a criminal sanction.

The operation of the amendments made by the Amending Act in this respect will be reviewed during the review of the operation and effectiveness of the Criminal Organisations Control Act 2012 required under section 137 of the Act and due in 2019.

The Surveillance Devices Act 1999 is also amended in what are described by the Government as two small but important amendments. The first is to include in the Act provisions relating to the responsible minister's tabling in Parliament of reports on the operation of the Act received from agencies exercising powers under the Act. At present, the Act makes no provision for the "redaction" of sensitive information contained in such reports. The amending Act rectifies this and provides the responsible minister with the ability, on the advice of the law enforcement agency preparing the report, to redact sensitive information before tabling a report.

The second amendment area relates to the replacement of outdated references to the former department of "Environment and Primary Industries" contained within that Surveillance Devices Act 1999. The amending Act replaces references to "Department of Environment and Primary Industries" with references to "Department of Environment, Land, Water & Planning" and references to the "Department of Economic Development, Jobs, Transport and Resources" ensuring officers of both departments are able to seek warrants under the Surveillance Devices Act 1999 to investigate serious environmental crime.

The Family Violence Protection Amendment Act 2014 (No. 77 of 2014) is amended with respect to its default commencement date. The amending Act removes the default commencement date of 1 July 2016 for the reform and provides that it can now be commenced on any date by proclamation. The Governments reason for the amendment is to allow the government to consider the future of the reform as part of its response to the Royal Commission into Family Violence due to report on 29 March 2016.

In all, the amending Act makes important changes to several key pieces of Victorian legislation and in particular attempts to further tackle organised  crime.

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Confiscation and Other Matters Amendment Act 2016 (27 of 2016) [VIC] and accompanying Second Reading Speech and EM as reported by TimeBase LawOne Service

Justice Legislation Amendment (Confiscation and Other Matters) Act 2014 (Vic No 79 of 2014) and accompanying Second Reading Speech and EM as reported by TimeBase LawOne Service

Family Violence Protection Amendment Act 2014 (No. 77 of 2014) and accompanying Second Reading Speech and EM as reported by TimeBase LawOne Service

Confiscation of the proceeds of crime : federal overview (Australian Institute of Criminology)