Thursday, 1 September 2022

Major Crime and Community Safety Legislation Amendment Bill 2022

Introduction and first reading

The PRESIDENT (17:32): I have a further message from the Assembly:

The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Confiscation Act 1997, the Crimes Act 1958, the Crimes (Assumed Identities) Act 2004, the Drugs, Poisons and Controlled Substances Act 1981 and the Sex Work Decriminalisation Act 2022 and for other purposes’.

Ms SHING (Eastern Victoria—Minister for Water, Minister for Regional Development, Minister for Equality) (17:33): I move:

That the bill be now read a first time.

Motion agreed to.

Read first time.

Ms SHING: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

Statement of compatibility

Ms SHING (Eastern Victoria—Minister for Water, Minister for Regional Development, Minister for Equality) (17:33): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (Charter), I make this Statement of Compatibility with respect to the Major Crime and Community Safety Legislation Amendment Bill 2022 (Bill).

In my opinion, the Bill, as introduced to the Legislative Council, is compatible with the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill will amend:

• the Confiscation Act 1997 (Confiscation Act) to:

• enhance law enforcement’s powers to address organised crime’s growing use of cryptocurrencies;

• clarify and strengthen investigation and enforcement powers including those regarding serious drug offenders, information gathering by law enforcement, restraining orders, and enforcement of confiscation outcomes to ensure more equitable outcomes where the confiscation system is used to satisfy compensation or restitution orders; and

• update offences that trigger an offender’s assets being automatically forfeited.

• the Drugs, Poisons and Controlled Substances Act 1981 (Drugs Act) so that trafficking the serious drug 1,4-Butanediol (1,4-BD) triggers automatic forfeiture provisions in the Confiscation Act;

• the Crimes Act 1958 (Crimes Act) to streamline, clarify and modernise Victoria Police search warrant powers and to fingerprinting framework;

• the Crimes (Assumed Identities) Act 2004 (Assumed Identities Act) to streamline and modernise processes for Victoria Police to authorise and use assumed identities in the online environment; and

• the Sex Work Decriminalisation Act 2022 consequentially to reflect changes to the automatic forfeiture provisions in the Confiscation Act.

Human Rights Issues

Amendment of the Confiscation Act 1997 (Part 2)

Digital Currency Exchange Services (Part 2, Division 1)

The Bill broadens the definition of ‘financial institution’ under the Confiscation Act to include digital currency exchanges, as well as making consequential amendments to enable the expanded definition to operate. The reform means that:

• information-gathering powers in Part 13 of the Confiscation Act, including monitoring orders (Division 3) and information notices (Division 3A), will apply to digital currency exchanges; and

• freezing orders in Part 2A of the Confiscation Act will be available in relation to digital assets.

Right to privacy (section 13(a))

The information-gathering powers in Part 13 of the Confiscation Act enable law enforcement to require financial institutions to provide account and transaction information they hold in relation to specific persons. I consider that the amendments extending these information-gathering powers to digital currency exchanges engage the right to privacy. Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. For the reasons below, I consider any interference with privacy rights will not be unlawful or arbitrary and the information-gathering powers in the Bill are compatible with the right to privacy.

The extension of the powers to digital currency exchanges in the Confiscation Act will make their exercise lawful. Further, I do not consider that any resulting interference with privacy rights will be arbitrary. The circumstances in which information-gathering powers under the Confiscation Act may be exercised are limited, clearly defined and have sufficient safeguards to prevent arbitrary use. Information notices and monitoring orders are limited to circumstances in which there are reasonable grounds to believe that the person whose account is being affected has committed or benefited from a relevant offence (or is about to). Information notices can only be issued by an authorised officer of senior rank and with written reasons recorded. Further, monitoring orders are issued by courts, so are subject to judicial oversight.

Property rights (section 20)

The proposed expansion of information-gathering powers to digital currency exchanges is intended to assist with the forfeiture of cryptocurrencies and other digital assets. Together with the proposed extension of freezing orders to digital assets, these reforms will engage property rights. Section 20 of the Charter provides that a person must not be deprived of his or her property other than in accordance with law.

These powers will be provided for by the Confiscation Act and exercised in accordance with law, so are compatible with the Charter. Further, I consider that these powers are not arbitrary because they are appropriately confined to target the proceeds of serious, organised and profit-motivated crime. Freezing orders are established under Part 2A of the Confiscation Act and are subject to strong safeguards as they are strictly limited in duration and can only be issued by a court. Organised crime groups are increasingly trading and holding their wealth in digital assets like cryptocurrency. I consider these reforms are a modest and appropriate extension to ensure Victoria’s confiscation scheme can meet contemporary challenges.

Search warrants and seizure warrants (Part 2, Division 2)

The Bill makes three main amendments to the search and seizure warrant provisions in the Confiscation Act. First, warrants for seizure of forfeited property in public places will be extended from one month to six months and additional persons will be able to apply for these warrants. Second, police will be able to require assistance from a person with knowledge of a computer, computer network, data storage device or item containing code to execute search warrants under the Confiscation Act. Failure to provide that assistance, which could involve providing a password, will constitute an offence and the Bill expressly abrogates the privilege against self-incrimination. Third, the Bill empowers police to secure digital assets by, for example, accessing the global blockchain and changing a digital asset’s encryption key to prevent criminal targets from accessing the asset remotely.

Right to privacy (section 13(a))

I consider that the amendments to permit assistance from a person in executing a search warrant engage the right to privacy. However, I consider that any interference with the right to privacy is lawful and not arbitrary, and therefore that the amendments are compatible with section 13(a) of the Charter.

The powers are critical to ensure the confiscation regime adequately enables law enforcement to locate and ascertain digital assets, while providing associated safeguards. Their scope is similar to existing powers in sections 465AAA and 465AA of the Crimes Act, which also enable effective execution of warrants with reference to current use and changes in technology. Searches are limited to property that has been used in, or derived from, criminal offences, or property that has been forfeited to the State.

Property rights (section 20)

The amendments to search and seizure warrants under the Confiscation Act also engage property rights under section 20 of the Charter only to the extent that they relate to tainted, rather than forfeited, property. However, I consider that any interference with property rights will be appropriately confined and structured.

Empowering police to secure tainted digital assets is intended to restrict access to and dissipation of the asset, consistent with the purpose of the warrant to enable the seizure of tainted property.

To the extent that the securing of digital assets relates to forfeited property, the reforms do not engage property rights, as forfeited property is vested in the Minister on behalf of the State and individuals who retain possession of forfeited property have no rights in relation to it. Extending the duration of seizure warrants from one month to six months does not interfere with property rights, as the extended warrant period will apply to warrants for forfeited property only. Extending the validity of these warrants will assist police to seize forfeited property like vehicles if intercepted in public.

The right not to be compelled to testify against oneself (section 25(2)(k)) and right to a fair hearing (section 24(1))

The Bill provides that a person is not excused from complying with a direction or order to give assistance in the execution of a warrant under the Confiscation Act on the ground that complying with it may result in information being provided that might incriminate the person. This amendment engages the right not to be compelled to testify against oneself or to confess guilt under section 25(2)(k) of the Charter. The privilege against self-incrimination is also an important element of a fair trial and therefore similarly limits section 24(1) of the Charter, which provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. I consider that any limitation of these rights is demonstrably justified as a reasonable limit under section 7(2) of the Charter.

I note that the proposed reforms are modelled on existing general search warrant provisions in sections 465AAA and 465AA of the Crimes Act. Like those existing provisions, the amendments to the Confiscation Act reflect technological changes and will enable the effective execution of search warrants to access and seize digital assets that may be liable to forfeiture. Specifically, while police can use force or expert assistance to gain access to a locked room, cupboard or safe without impacting the privilege against self-incrimination, the same is not always possible for computers or digital storage devices. These devices often have sophisticated encryption or security settings that cannot be readily overcome with force or even professional skills in the same way as physical storage.

The nature and extent of the limitation on rights is confined, as a person may only be required to assist police to access a digital asset when authorised by a Magistrate issuing a warrant. The required assistance is also limited to assistance or actions that are reasonable and necessary to effectively execute the warrant.

Under section 92 of the Confiscation Act, police may seize items not listed in a warrant that would provide evidence about the commission of a Schedule 1 offence. It is therefore possible that by assisting police to access a data storage device, police may discover incriminating documents beyond tainted or forfeited property. Section 92 of the Confiscation Act is directed to the important purpose of ensuring that, where police identify evidence of serious offending, further investigation and prosecution is possible. Effective investigation and prosecution of serious crime is necessary to protect community safety, and may promote other rights, including the right to life and protection of families and children. If assistance provides access to a computer or storage device, which then leads to evidence of the commission of a Schedule 1 offence, it is consistent with the purpose of section 92 that that evidence should be admissible. I therefore do not consider that the inclusion of a direct use immunity is an appropriate less restrictive alternative.

Exclusion applications (Part 2, Division 3)

Property rights (section 20)

Where property is forfeited or restrained, the Confiscation Act allows third parties who are impacted to apply to have their interest in the property excluded from the operation of the scheme. The Bill restricts some of these exclusion mechanisms and therefore engages property rights. However, I consider that any interference with property rights is lawful and not arbitrary, and therefore compatible with the Charter.

First, the Bill closes a loophole in the Confiscation Act that allows third parties to exclude property from the serious drug offender scheme that they knew, or should have reasonably suspected, was used in or derived from criminal offending. This amendment aligns with the exclusion provisions for lesser offences in Schedule 2 to the Confiscation Act. Furthermore, exclusion order applications remain subject to court oversight and determination. I consider that this reform is appropriately confined given it will only apply where the affected third party is, or should have been, aware of the property’s connection to criminal offending.

Second, the Bill also imposes a six-month time limit on exclusion applications related to money that has already been forfeited. Currently, exclusion applications made post-forfeiture must be made within 60 days of the property being forfeited unless the court allows an out of time application. For forfeited property that is not money, out of time applications are limited to the period before the property is sold off or disposed of by the State, which is usually within six months. However, as forfeited money is deposited in the Consolidated Fund, and not disposed of under the Confiscation Act, there is effectively no limit on the court being able to accept out of time applications.

Responding to exclusion applications made a significant time after money was forfeited causes the State substantial evidentiary difficulties. The Bill addresses this issue and provides for consistent treatment of exclusion applications across all types of forfeited property. The six-month time limit is consistent with the current practice for selling off forfeited property that is not money, and provides fair and sufficient time for third parties to seek to have their money excluded from the operation of the scheme.

Partial forfeiture of real property and proceeds of sale of forfeited residence (Part 2, Division 4)

When considering a forfeiture order application, the Confiscation Act allows a court to have regard to any undue hardship that may be caused to any person by the order. Where the property sought to be forfeited is solely owned by an offender but is a family home, the court can consider the impact forfeiture would have on family members. This has resulted in courts refusing to forfeit property to the State, despite it being proceeds of crime or associated with criminal activity. The Bill will clarify that a court may order partial forfeiture of property, providing flexibility to make fairer forfeiture orders.

Property rights (section 20)

The partial forfeiture amendment may increase the likelihood that an offender’s property will be forfeited and therefore impact on their property rights or the property rights of their family members. The partial forfeiture amendment will be lawful, by its inclusion in the Confiscation Act, and the nuanced approach it takes to the interests of family members ensures it is not arbitrary. Importantly the amendment will allow, but not compel, a court to order partial forfeiture. This will remain a decision of the court, taking into account the circumstances of individual case. For these reasons, I consider the partial forfeiture amendment compatible with property rights.

The right to protection of families and children (section 17)

Section 17(1) of the Charter provides that families are the fundamental group unit of society and are entitled to be protected by society and the State. Section 17(2) additionally provides that every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child. These rights are engaged by the amendments to partial forfeiture and proceeds of sale of a forfeited residence, but I am satisfied that any engagement is compatible with the Charter.

The Bill gives a court the ability to make orders that are fair and reasonable in all the circumstances of the case, with greater flexibility to consider an offender’s family’s interests in forfeited property. This ensures that the right to protection of families and children is protected to the greatest extent possible. The amendments in the Bill do not impact on third party property rights, as they do not alter the current mechanisms in the Confiscation Act for third parties to have their property excluded from the operation of the scheme because of undue hardship.

The Confiscation Act contains safeguards to protect an offender’s dependents, which are enhanced by the Bill. Specifically, section 45A of the Confiscation Act allows a court to award some of the proceeds of sale of a serious drug offender’s residence to their dependents. The Bill will clarify that the court may split a relief payment under section 45A between two or more dependents which will help prevent inequitable distributions in future cases. This amendment promotes the right to protection of families and children.

Enforcement of pecuniary penalty orders (Part 2, Divisions 6 and 7)

The Bill amends provisions relating to actions that may be taken when enforcing pecuniary penalty orders (PPOs) made under Part 8 of the Confiscation Act. Specifically, the Bill:

• inserts provisions for the sale of land to satisfy a pecuniary penalty order;

• creates an offence of disclosing the existence of document requests in relation to PPOs, consistent with the current position for information notices issued under the Confiscation Act; and

• enables the use of information-gathering powers under the Confiscation Act for historic PPOs issued under the Crimes (Confiscation of Profits) Act 1986.

Freedom of expression (section 15(2))

Prohibiting disclosure of the existence of a document request engages section 15(2) of the Charter, which protects freedom of expression. However, the right is subject to lawful restrictions reasonably necessary to protect public order. This amendment to the Confiscation Act is lawful and is directed to the legitimate public order purpose of supporting enforcement action under the Confiscation Act. Without this restriction on disclosure, PPO enforcement could be undermined by the subject of confiscation proceedings being tipped off and dissipating assets before they can be forfeited. The right to freedom of expression is therefore not limited.

Property rights (section 20)

Amendments relating to the enforcement of PPOs also engage property rights, but any engagement will be lawful and appropriately confined. The State can already pursue the sale of charged property to satisfy PPOs. The Bill simply establishes a statutory mechanism to avoid expensive litigation and associated delays. The Bill maintains judicial oversight and opportunities for affected persons to make exclusion applications as appropriate. Accordingly, I do not consider these amendments limit property rights under the Charter.

Expanded information-gathering powers for historic PPOs may lead to greater enforcement activity and also engage property rights. However, a PPO does not expire and a person subject to such an order remains liable regardless of the time that may have passed since the order was made. The information-gathering powers therefore do not interfere with property rights in any additional way.

Information-gathering powers (Part 2, Divisions 8 and 10)

The Bill strengthens information-gathering provisions under Parts 12 and 13 of the Confiscation Act, including by:

• establishing a new power to compel the production of documents as part of the existing examination process in Part 12 of the Confiscation Act;

• expanding the grounds for which property-tracking documents may be obtained to include documents to support the enforcement of a PPO under the Confiscation Act or a compensation or restitution order under the Sentencing Act 1991;

• expanding the types of information that may be obtained from financial institutions via an information notice (currently limited to account details) to include details about property secured by a loan;

• expanding the grounds on which information notices may be issued so they can be used to obtain information about ‘tainted’ or ‘derived property’;

• providing that information notices are valid for three months, during which time police can request updated information without issuing a new information notice;

• expanding the application of information notices issued to enforce PPOs under section 118E of the Confiscation Act to include accounts not secured by a mortgage; and

• establishing a new power to request and obtain credit reporting data for the purpose of any proceeding or enforcement action under the Act.

Right to privacy (section 13(a))

The proposed reforms to information-gathering powers engage the right to privacy. However, I consider that any interference with privacy rights is lawful and not arbitrary. The Confiscation Act specifies in detail the limited circumstances in which information-gathering powers may be exercised, including that there must be a nexus with criminal offending. Additionally, examination and production orders are only available when ordered by a court and are subject to judicial oversight. The reforms are a modest expansion of existing powers under the Confiscation Act that will address gaps and inefficiencies in the current provisions.

The right not to be compelled to testify against oneself (section 25(2)(k)) and right to a fair hearing (section 24(1))

The Bill will create the power to issue an examination notice, requiring production at an examination of specified information or documents. The Bill makes it an offence to fail to produce the specified information or document without a reasonable excuse and extends section 99(1) of the Confiscation Act to provide that a person may not refuse to comply with an examination notice on the grounds that it might tend to incriminate the person. These amendments engage the right not to be compelled to testify against oneself and, consequently, the right to a fair hearing. However, I consider any limitation on these rights by the examination notice amendments is demonstrably justified as a reasonable limit under section 7(2) of the Charter.

The limitation recognises that criminals may take steps to conceal their wealth from law enforcement agencies. The new production powers are designed to overcome such steps to fulfil the objectives of the Act, including to confiscate the proceeds of crime and to deter serious, profit-motivated criminal activity. The limitation is also appropriately confined and proportionate to the objective of the examination notice, as the Bill extends the existing direct and derivative use immunities in sections 99(2) and (2A) of the Confiscation Act to the person who provides information or documents under an examination notice. The information or documents produced under the notice—or any information, documents or other things obtained derivatively—are not admissible against the person in any criminal proceeding (except in proceedings for giving false testimony or failure to comply with the production notice). These important safeguards replicate those that apply where a person is asked questions during an examination process.

Restraining orders (Part 2, Division 9)

The Bill improves restraining order provisions under the Confiscation Act by:

• clarifying that restraining orders can be made to satisfy historic pecuniary penalty, compensation and restitution orders; and

• providing that any mortgage, charge or encumbrance (including a caveat) created on real property after a restraining order is void, unless approved by a court.

Property rights (section 20)

More property will likely be restrained as a result of clarifying that restraining orders can be made to satisfy pecuniary penalty, compensation and restitution orders made in the past, which will engage property rights under section 20 of the Charter. However, any interference with property rights will be lawful and appropriately constrained by judicial oversight and exclusion application pathways. For these reasons, I consider this reform compatible with property rights.

Limiting the ability of individuals to lodge caveats on restrained property will not otherwise engage property rights, given the availability of existing exclusion order pathways to protect property interests. Caveats lodged after a restraining order currently do not protect property rights and can be removed under section 42 of the Confiscation Act and the Transfer of Land Act 1958. The reforms will direct third parties towards the exclusion order pathways under the Confiscation Act, which will more appropriately protect their property interests and avoid the time and costs associated with having incorrectly placed caveats removed.

Miscellaneous amendments (Part 2, Division 10, Parts 5 and 6)

Property rights (section 20)

The Bill includes several other miscellaneous reforms that engage property rights and require Charter consideration.

First, the Bill clarifies the concept of effective control. Property that may be confiscated under the Confiscation Act includes property under the ‘effective control’ of an accused, not only property legally owned by them. Section 9 of the Confiscation Act defines how the concept of effective control applies in the Act. It is critical to confiscating assets when accused persons have arranged for assets to be held in the names of family members, trusted associated or companies they control. The Bill will broaden the definition of ‘effective control’ in the Confiscation Act by providing that property may be subject to the effective control of more than one person and that property held on trust for the ultimate benefit of a person is taken to be under their effective control.

These additional elements are based on the approach taken in the Proceeds of Crime Act 2002 (Cth) and increase the likelihood that property may be forfeited to the State. Importantly, whether or not property is deemed to be under the ‘effective control’ of a person will still be determined by the court taking into the account the circumstances of a particular case. I consider any resulting interference with property rights is lawful and appropriately confined, directed to circumstances where accused persons are actively seeking to conceal their assets from law enforcement. The opportunities under the Confiscation Act to have interests excluded from restraint or forfeiture, or to buy back or buy out forfeited property interests, provide sufficient safeguards for any third parties affected by the increased scope of the definition of ‘effective control’.

Second, the Bill clarifies that property that is protected from automatic forfeiture for serious drug offences should be valued at the time a restraining order is made, regardless of any depreciation thereafter. Protected property is defined in section 24(2) of the Confiscation Act and includes necessary transport, clothing, household items and tools of trade used by the accused or their dependents above a prescribed value ($12,500 for vehicles that are used as a primary means of transport and $5,000 for other property items). Proceedings under the Act may take years to be finally determined, during which times assets like cars may depreciate significantly and fall below the prescribed threshold.

This reform provides certainty and frees the Director of Public Prosecutions from the additional work required to confiscate property that falls below the prescribed threshold before automatic forfeiture occurs. To the extent that the law could currently be interpreted as allowing valuation after the point of restraint, then the reform has the potential to enable the restraint of additional property of offenders. However, I consider the reform is necessary to provide certainty for all parties at the time property is restrained. Further, the impact of this reform on property rights is lawful and is also modest, proportionate and appropriately confined. I therefore consider that this amendment does not limit property rights.

Third, the Bill extends the period before a serious drug offence restraining order automatically lapses under section 27(3A) of the Confiscation Act after the relevant charge is withdrawn, from seven days to 14 business days. When charges are withdrawn, an accused may be charged with alternative lesser offences. The current seven-day period does not provide sufficient time for the Director of Public Prosecutions to prepare and file new charges before the restraining order lapses.

This reform increases the period that an accused person cannot deal with their property and is also intended to increase the likelihood that property may be forfeited to the State and not dissipated, thereby interfering with property rights. I consider this modest extension to be lawful, as well as striking an appropriate balance between protecting property rights and preserving assets while an appropriate restraining order is obtained. This amendment therefore does not limit property rights.

Fourth, the Bill extends the duration of freezing orders from three to five business days. The current duration is insufficient for the Director of Public Prosecutions to apply for a restraining order in almost half of all cases and can lead to the dissipation of assets before a restraining order can be obtained. I consider this is a modest extension that strikes an appropriate balance between property rights and the underlying purposes of the scheme. This amendment does not limit property rights.

Finally, the Bill triggers the Confiscation Act’s:

• automatic and civil forfeiture provisions for possession of a traffickable quantity of firearms contrary to section 7C of the Firearms Act 1996;

• automatic forfeiture provisions for serious sex offences involving sexual servitude and commercial sexual services by children, regardless of the value of the service; and

• automatic forfeiture provisions for trafficking 600 grams or more of the serious drug 1,4-BD.

While these reforms will directly impact property rights by increasing forfeiture opportunities, I consider the amendments lawful and the impact on property rights to be proportionate to the seriousness of the offences. These amendments do not limit property rights.

Amendment of the Crimes Act 1958 (Part 3)

Search warrant powers (Part 3, Division 1)

The amendments in Division 1 of Part 3 of the Bill will streamline the way police execute search warrants, by allowing police to copy data stored on a computer or data storage device, break open receptacles, seek assistance from those with specialised skills (such as locksmiths or forensic accountants) and secure computer equipment for operation by experts. The amendments will also streamline the process after a warrant has been executed by allowing Victoria Police to lodge a report about the execution of the warrant, rather than returning seized items to court.

Rights to privacy (section 13(a)) and property (section 20)

I consider that the rights to privacy and property are engaged by the proposed search warrant reforms in Division 1 of Part 3 of the Bill to the extent they expand the powers available under search warrants, and who may exercise them. However, for the following reasons, I am satisfied that any interference with the right to privacy is lawful and not arbitrary, and therefore that the Bill is compatible with sections 13(a) of the Charter. I am further satisfied that any interference with property rights will be in accordance with law and appropriately confined and therefore compatible with section 20 of the Charter.

Victoria Police’s powers to execute search warrants under section 465 of the Crimes Actare clearly defined and prescribed by Part III, Division 1, Subdivision 31 of the Crimes Act. Before searches can be undertaken, a Magistrate must grant a search warrant under section 465 of the Crimes Act. A Magistrate may only grant a warrant under section 465 where they are satisfied that there is an item in the search warrant premises that may constitute evidence of an indictable offence that has been committed or is likely to be committed within the next 72 hours.

Allowing Victoria Police to use assistants when executing a search warrant will engage the right to privacy by increasing the number of people who may be present at a private premises when a search warrant is executed. However, the increased impact on privacy is expected to be modest, as Victoria Police will only be able to use assistants who possess specialised skills or technical knowledge necessary to exercise a power authorised by the warrant and may not use an assistant to arrest a person.

The amendment to clarify that Victoria Police may break open a locked receptacle when executing a search warrant issued under section 465(1) of the Crimes Act will also engage the rights to privacy and property, by providing Victoria Police with additional access to personal property at a search warrant premises. The powers may also enable Victoria Police to damage personal property. However, the Bill limits the use of this power by requiring that it be reasonably necessary to gather evidentiary material or prevent a hazard. The powers serve the important purpose of allowing Victoria Police officers to execute search warrants safely and efficiently.

The amendment to empower Victoria Police to secure electronic equipment at a search warrant premises will engage the rights to privacy and property, as Victoria Police may spend longer at a private premises and may restrict access to personal property or private space while equipment is being secured. However, any impact on this right will be limited by the safeguards in the Bill, including that electronic equipment may only be secured for a maximum period of 48 hours to allow an expert to attend and operate the equipment. If Victoria Police wishes to secure equipment for a longer period, police must apply to a Magistrate to obtain an extension.

Victoria Police is also a public authority within the meaning of the Charter. Its officers are therefore obliged to properly consider human rights in their decision making and to act compatibly with human rights in exercising statutory search warrant powers, in accordance with section 38 of the Charter.

Further, Victoria Police will be required to lodge a report with the Magistrates’ Court after a warrant is executed, thereby retaining Court oversight over the search warrant powers and providing a safeguard against the arbitrary interference with the rights to property and privacy. The report must include the name of the police officer in charge of the execution of the warrant, the date on which the warrant was executed, the powers executed under the warrant, the details of any person arrested, items seized, any items disposed of or destroyed during the execution of the warrant, the name and qualifications of any assistants used in the execution of the warrant and details of electronic equipment secured in the execution of the warrant and of any extension of time to secure electronic equipment granted by the Magistrates’ Court.

The report will therefore engage the right to privacy of the police officer in charge and any assistants by naming them, but this will be lawful and not arbitrary and therefore also compatible with the right. Naming police officers and assistants is an important measure to ensure transparency in the execution of warrants.

The Bill requires Victoria Police officers to notify the occupier of a warrant premises where the report will be lodged and when it will be available for inspection. Further, any person with an interest in the execution of the warrant can inspect the report, ensuring transparency where search warrant powers have been exercised. The Magistrates’ Court will also have a discretion to require a police officer to give evidence in relation to a seized item, and to order that a seized item be returned to its owner.

I do not consider that the amendment empowering Victoria Police to access, convert and copy data held in or accessible from a computer or data storage device will have any greater impact on the rights to property or privacy than existing provisions of the Crimes Act. Section 465AA of the Crimes Act already allows Victoria Police to direct ‘a specified person’ to access, convert and copy data from a computer or storage device. While the amendment will allow Victoria Police officers to now do this personally, rather than another specified person, it will not grant any greater access to personal property or data during the execution of a search warrant under section 465(1).

Right to a fair hearing (section 24)

The display or publication of items may impact the right to a fair hearing at section 24 of the Charter, by influencing opinions about an alleged offence. However, I consider that any limitation of the right to a fair hearing at section 24 of the Charter is demonstrably justified as a reasonable limit within the meaning of section 7(2).

This power will deter offending and will provide public reassurance of community safety by demonstrating the outcomes of police investigations into serious and organised crime. It also aligns Victoria Police practice with other Australian jurisdictions, such as that of the Australian Federal Police. The courts will also retain their broad and inherent powers to ensure that criminal proceedings are conducted fairly and impartially. I am confident police will make these decisions responsibly and appropriately, and note police are accustomed to making such decisions in the context of releasing investigation details to the media.

Fingerprint powers (Part 3, Division 2)

Right to privacy (section 13(a))

I consider that the right to privacy under section 13(a) of the Charter, as described above, is engaged by the proposed amendments to Victoria Police’s powers to retain and use fingerprints taken from suspects under sections 464K and 464L of the Crimes Act. Fingerprints are personal information and any expansion of Victoria Police’s ability to use or hold a person’s fingerprints will therefore have a direct impact on their right to privacy. However, I consider that any interference with the right to privacy is lawful and not arbitrary, and therefore that the Bill is compatible with section 13(a).

The Bill empowers Victoria Police to use fingerprints for the new purpose of identifying deceased and seriously injured people, including during coronial inquiries and investigations. While this amendment extends the purposes for which fingerprints can be used under the Crimes Act, it will serve the important purpose of reducing unnecessary investigations by the Coroner to identify a deceased person. The amendment may also reduce the time it takes for medical professionals treating a seriously injured person to receive relevant medical history or notify the family of a seriously injured or deceased person. The Bill also contains the important safeguard that fingerprints can only be used for identification purposes by a Coroner and will not otherwise be able to be used as evidence in a coronial investigation. Victoria Police will also only be permitted to share identity information, and not a copy of the fingerprints themselves, limiting the risks associated with storing and destroying fingerprints.

The Bill will also allow Victoria Police to retain multiple sets of person’s fingerprints. However, this amendment does not allow police to retain any additional personal information. Under section 464K(1) of the Crimes Act, police may take a person’s fingerprints on multiple occasions over a period of time or where they are suspected of having committed different offences. This can result in Victoria Police holding multiple sets of fingerprints for the same person, each with different retention and destruction timeframes under the Crimes Act. The Bill will streamline this process, allowing multiple sets of a person’s fingerprints to be held until Victoria Police no longer have an authority to hold that person’s fingerprints. While it could be considered less intrusive for Victoria Police to retain a single set of fingerprints in the circumstances, that approach could have unintended consequences for criminal proceedings, because it could alert a jury or judicial officer to the fact that an accused has had previous engagement with police.

Currently, under section 464O(3) of the Crimes Act, fingerprints taken from suspects must be destroyed ‘immediately’ after expiry of the six-month timeframe after the taking of the fingerprints if a person is not charged or the charge is not proceeded with.

The Bill will amend the timing of destruction so that fingerprints would be required to be destroyed ‘within one month’ rather than ‘immediately’ after the expiry of the specified timeframe. The reform will improve the operational workability of the destruction requirement, noting that it may not always be feasible for fingerprints to be destroyed ‘immediately’, while aligning with the existing timeframe for the destruction of fingerprints in circumstances where the person is found not guilty.

Importantly, this reform will continue to be subject to section 464O(7) of the Crimes Act, which provides that a person is guilty of a summary offence if they fail to destroy fingerprints required to be destroyed, or use, make, or cause or permit to be used or made any record, copy or photograph of fingerprints required to be destroyed.

Otherwise allowing Victoria Police to retain the fingerprints of deceased person will not interfere with the right to privacy, as the right to privacy does not extend to deceased persons.

Amendment to the Crimes (Assumed Identities Act) 2004 (Part 4)

The Bill seeks to modernise and streamline the processes that regulate the use of assumed identities by Victorian Public Service employees of Victoria Police (VPS employees) under the Assumed Identities Act. The reforms include removing the requirement that it is impossible or impracticable for a sworn police officer to acquire an assumed identify before a VPS employee can be authorised to use that assumed identity and extending the duration of such authorisations from three to 12 months. The Bill also streamlines the process for making and supervising these authorisations.

The Chief Commissioner of Police will also be permitted to delegate powers to authorise and review assumed identities to up to 10 officers (previously four) and delegations will be permitted to be made to the rank of Inspector or above (previously Superintendent). The Chief Commissioner’s powers under the Assumed Identities Act include granting, varying and cancelling authorities to acquire and use an assumed identity, reviewing, auditing and conducting appropriate record-keeping of Victoria Police’s use of assumed identities, as well as applying to change the register of births deaths and marriages and authorise the production of evidence in relation to an assumed identity. Finally, the Bill allows Victoria Police employees using an assumed identify to be supervised by sworn police officers at or above the rank of Sergeant, rather than requiring supervision by a single specified officer.

Right to privacy (section 13(a))

The use of a false identity may result in a person providing information in relation to private aspects of their life that they would not otherwise reveal to police. I accept that the amendments outlined above, to the extent that they expand the number of persons who may use an authorised assumed identity engage the right to privacy in section 13(a) of the Charter.

However, I am satisfied that to the extent there is any interference with the right to privacy, it will be lawful and not arbitrary, and therefore that the proposed reforms are compatible with section 13(a) of the Charter. The use of assumed identities will continue to be regulated and prescribed by the Assumed Identities Act. The Assumed Identities Act provides a comprehensive framework to govern Victoria Police’s acquisition and use of assumed identities. It is based on model legislation that is in place in all Australian jurisdictions.

Jaclyn Symes MP

Attorney-General

Minister for Emergency Services

Second reading

Ms SHING (Eastern Victoria—Minister for Water, Minister for Regional Development, Minister for Equality) (17:33): I move:

That the second-reading speech be incorporated into Hansard.

Motion agreed to.

Ms SHING: I move:

That the bill be now read a second time.

Incorporated speech as follows:

The Major Crime and Community Safety Legislation Amendment Bill 2022 makes important amendments that acquit commitments in the Community Safety Statement 2018 19, to strengthen Victoria’s laws targeting proceeds of crime and improve Victoria Police’s search warrant powers, crime scene powers, and ability to effectively gather and manage evidence.

The Bill also addresses the need to improve police investigations and reduce administrative burdens on Victoria Police, by streamlining and modernising the legislative powers related to executing search warrants, using and destroying fingerprints, and the use of assumed identities in criminal investigations. In streamlining these powers, the Bill maintains appropriate safeguards for their exercise, such as court oversight over the execution of warrants.

Confiscation Act Reforms

Effective asset confiscation laws are a powerful tactic against organised and profit-motivated crime. The Bill implements the Government’s commitment from the Community Safety Statement 2018–19 to strengthen investigative and enforcement powers in the Confiscation Act 1997, providing law enforcement with greater opportunities to confiscate proceeds of crime and thereby disrupt, deter and dismantle serious and organised criminal activity.

Cryptocurrencies and digital assets

The Bill addresses the growing use of digital currencies and other digital assets by criminal groups, expanding law enforcement’s powers to effectively identify and seize digital assets. The Bill extends the obligations of financial institutions under the Confiscation Act to digital currency exchanges to allow law enforcement to obtain account information from them in the same way that information may be obtained from banks. These amendments also provide clear powers for digital assets to be monitored and frozen to prevent them from being dissipated by a criminal target. The digital currency exchanges affected by these reforms are already required to be registered on the Digital Currency Exchange Register under Part 6A of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). The Bill also makes changes to the Confiscation Act to update provisions to ensure they are applicable to digital assets.

The Bill inserts new powers for law enforcement to require assistance from people with knowledge of computers, data storage devices, or other means of accessing digital assets to gain access to these assets when executing search warrants. These powers align with equivalent powers under the Crimes Act 1958 and ensure digital measures to secure property can be overcome in the same way as physical barriers such as locks and safes. This reform is crucial to the effective use of search warrants now that assets are increasingly being held digitally.

The Bill also provides law enforcement with a clear power to secure digital asset wallets seized under warrant against remote interference, allowing digital assets to be secured in much the same way as physical assets.

Information-gathering powers

The Bill addresses operational limitations on the existing information-gathering powers provided to law enforcement in the Confiscation Act, by expanding the uses of powers and the types of information that can be accessed to support investigative and enforcement efforts. For example, the Bill allows law enforcement to issue information notices for a broader range of bank accounts and property types than are currently available and reduces the administrative burden of issuing multiple individual information notices to seek updated account information during ongoing litigation. The Bill also expands the circumstances in which the production of documents can be compelled, including during an examination into a person’s assets and financial affairs by the Office of Public Prosecutions.

These amendments ensure that law enforcement is able to better investigate an accused person’s financial situation and more effectively identify ill-gotten gains to support confiscation actions.

Enforcement and finalisation of confiscation outcomes

The Bill strengthens the State’s ability to enforce and finalise confiscation outcomes. Specifically, the Bill provides a clear statutory pathway to enforce pecuniary penalty orders against real property, and a mechanism for a court to order a sale of land. These reforms are intended to reduce the complexity of the litigation that can currently occur in these cases while maintaining safeguards and judicial oversight of the process.

The Bill amends warrant provisions providing for the seizure of forfeited property in public places and the management of forfeited and restrained property. The Bill also creates a new offence prohibiting a person from disclosing the existence of document requests relating to the enforcement of pecuniary penalty orders, creating consistency with information notices issued under the Confiscation Act. This new offence will help prevent advance warning being given that could undermine a law enforcement agency’s investigative or enforcement actions.

The Bill will assist in finalising forfeiture outcomes by putting a six-month time limit on third parties applying for forfeited money to be excluded from confiscation. This amendment avoids evidentiary difficulties when applications are received years after forfeiture and creates consistency with other types of property forfeited under the Confiscation Act.

Partial forfeiture

The Bill addresses gaps in law enforcement’s ability to investigate and seize property that is tainted by criminal offending. The Bill resolves an inconsistency in the Confiscation Act that currently allows tainted or derived property to be excluded from forfeiture in relation to serious drug offences when it cannot be excluded for less serious offending. It also gives courts discretion to order the partial forfeiture of tainted property in circumstances where there is a sole owner of the property, mitigating disproportionate impacts and undue hardship when an entire property is forfeited, especially if it is a family home.

Serious drug offender scheme

The Bill clarifies aspects of the serious drug offender provisions to maximise the potential for asset forfeiture and reduce the risks of offenders being able to dissipate their assets. For example, the Bill clarifies that property may be forfeited if it meets the value threshold at the time of restraint, regardless of any depreciation that occurs later. The Bill also extends the period before which a restraining order lapses after a serious drug offence charge is withdrawn, from seven days to 14 business days. This will allow adequate time for the Director of Public Prosecutions to file new charges and restraining orders where appropriate and prevent the property being moved in the interim.

The Bill also makes an important amendment to ensure fairer outcomes under the serious drug offender scheme. It clarifies that a court has power to split a payment from the proceeds of sale of a serious drug offender’s forfeited residence between two or more of their dependents to avoid any inequitable outcomes in cases where a serious drug offender has multiple dependents.

Compensation for victims of crime

The Bill expands the range of forfeited property that may be used to pay victim compensation or restitution orders. Specifically, it removes the requirement that forfeited property must have previously been subject to a restraining order, which is not always the case, and the need for property to have been forfeited in relation to the particular offence that impacted a victim where an offender has been prosecuted separately for related crimes.

The Bill also raises the monetary threshold for restraining orders for compensation or restitution purposes from $10,000 to $20,000. This threshold has not been updated since the commencement of the Confiscation Act in 1998 and the increase is approximately in line with inflation. The raised threshold recognises the Act’s focus on profit motivated crime, and the need to balance the impact on personal property rights caused by restraining orders and forfeiture with the rights and interests of victims.

Restraining orders

The Bill clarifies and streamlines the operation of restraining orders under the Confiscation Act. For example, it prohibits third parties from lodging restrictions like caveats on real property that is subject to a restraining order. This amendment makes it clearer for third parties that the application pathways contained in the Confiscation Act need to be used to protect property interests, while avoiding unnecessary time and cost of removing caveats and other restrictions on property through the courts. Additionally, the Bill clarifies that restraining orders may be made for the purpose of satisfying pecuniary penalty orders, or compensation or restitution orders that have been made in the past, improving opportunities to enforce those orders.

Automatic forfeiture offences

The Bill provides a number of additional offences that will trigger the automatic forfeiture of assets upon conviction. These include the possession of a traffickable quantity of firearms, and trafficking in amounts greater than 600g of the drug 1,4-Butanediol (1,4-BD), which is a surrogate for gamma hydroxyl butyrate or GHB. The Bill removes existing thresholds that prevent convictions in relation to certain serious sexual offences from triggering the automatic forfeiture of assets. Currently, convictions for offences relating to sexual servitude and commercial sexual services by children only trigger automatic forfeiture where the payment for those services amounts to $50,000 ($75,000 for multiple offences) or higher. These reforms reflect that the seriousness of those offences arises from the conduct, not the value of any payment made for the services. The Bill also consequentially amends the Sex Work Decriminalisation Act 2022 for these changes.

Additional clarifying reforms to the Confiscation Act

The Bill makes several further reforms to clarify concepts and provisions in the Confiscation Act. For example, the Bill expands the circumstances in which property can be considered under the ‘effective control’ of an accused person, consistent with approaches taken in some other jurisdictions including the Commonwealth. This amendment is important to ensure that accused persons cannot avoid confiscation actions by simply transferring assets to family members, trusted associates, or companies they control.

The Bill also clarifies that the criminal standard of proof applies in determining whether the evidence against a person who has absconded before being committed to trial is of sufficient weight to support their conviction before an asset confiscation order is made. Using the higher criminal standard avoids prejudice to accused persons as well as their family or other third parties who may have interests in the property of the accused.

Search warrant reforms

The Bill amends Victoria Police’s search warrant powers under the Crimes Act 1958, acquitting the Government’s commitments in the 2018–19 Community Safety Statement to streamline those powers.

Victoria Police’s search warrant powers are set out in Part III, Division 1, Subdivision 31 of the Crimes Act. Before searches can be undertaken, a Magistrate must grant a search warrant under section 465 of the Crimes Act. The Bill does not amend the test for a Magistrate to issue a warrant under section 465 of the Crimes Act. However, once a warrant is issued, the Bill provides police with a suite of expanded powers, which reflect the reality of modern policing.

First, the Bill empowers Victoria Police officers to personally take copies of electronic data from computers and storage devices. So that evidence is not tampered with or destroyed, the Bill also allows Victoria Police officers to secure electronic equipment for operation and analysis by experts. The Bill balances the impact that this power may have on individuals by limiting the time that electronic equipment can be secured to a maximum of 48 hours. If Victoria Police officers consider it necessary to secure equipment for longer, they must apply to a Magistrate for an extension.

The Bill also empowers police to seek assistance from people with specialised skills or technical knowledge to execute a search warrant, without those assistants being named in advance in the warrant—for example, seeking assistance from locksmiths or forensic accounts. The Bill ensures this power will only be exercised where the expert’s skills are necessary to execute the search warrant. Victoria Police will also only be empowered to direct an assistant to take actions that are consistent with their specialised skills and knowledge, assistants will not be able to arrest a person, and Victoria Police will be required to report to the Court on the identity of any assistant used. This aspect of the reforms aligns with warrant powers across a range of Victorian legislation, such as the Drugs Poisons and Controlled Substances Act 1981, the Taxation Administration Act 1997, and the Confiscation Act.

The Bill also clarifies that a police officer executing a search warrant can break open a safe or storage receptacle as reasonably necessary to conduct a search under the warrant. The officer can also take the receptacle to another place for examination for up to seven business days if it is less expensive, easier, or safer than doing so at the search warrant premises.

The Bill allows police officers to retain things seized under a warrant issued under section 465 of the Crimes Act for an investigation or criminal proceeding, without first having to take the item back to court. Removing the requirement to return seized items to court will free up significant police and court time and resources.

Importantly, the Magistrates’ Court will retain oversight over the execution of warrants despite the efficiencies gained in the process. Police will be required to lodge a report with the Court following the execution of a warrant. That report must include the name of the police officer in charge of the execution of the warrant, the date on which the warrant was executed, details of any items seized, any persons arrested, all searches undertaken, any things destroyed or disposed of, the name and qualifications of any assistants used in the execution of the warrant, and details of electronic equipment secured in the execution of the warrant and any extension of time to secure electronic equipment granted by the Magistrates’ Court.

Police officers must notify the occupier of the warrant premises where and when the report will be lodged. People with an interest in the warrant can then inspect the report. The Magistrates’ Court will also have a discretion to require a police officer to give evidence on the matters in the report. The Magistrate can also direct that a seized item be returned to its owner, consistent with existing legislation.

To help deter offending, the Bill also empowers the Chief Commissioner of Police to display seized items, such as quantities of drugs, openly in the media following the execution of a search warrant. This power will align Victoria Police with the practice of other Australian law enforcement agencies, will deter offending, and will provide public reassurance of community safety by demonstrating the outcomes of police investigations into serious and organised crime.

Fingerprint reforms

The Bill amends provisions in the Crimes Act to modernise and streamline Victoria Police’s powers to retain, use and destroy fingerprints.

The reforms include removing the requirement to destroy a person’s fingerprints if they die, streamlining Victoria Police’s ability to conduct investigations or prosecutions where the fingerprints of a deceased person may be useful evidence.

The Bill also allows Victoria Police to use fingerprints to identify deceased and seriously injured people. Allowing fingerprints to be used for identification purposes may reduce unnecessary investigations by the Coroner and the time it takes for medical professionals treating a seriously injured person to receive relevant medical history. While this reform introduces a new purpose for using fingerprints under the Crimes Act, it also contains important safeguards. Specifically, fingerprints can only be used for identification purposes by a Coroner and will not otherwise be able to be used as evidence in a coronial investigation. Victoria Police will also only be permitted to share identity information, and not a copy of the fingerprints themselves, limiting the risks associated with storing and destroying fingerprints.

The Crimes Act allows police to take a person’s fingerprints on multiple occasions over a period of time or where they are suspected of having committed different offences. This can result in Victoria Police holding multiple sets of fingerprints for the same person, each with different retention and destruction timeframes under the Crimes Act. The Bill will streamline this process, allowing multiple sets of a person’s fingerprints to be held until Victoria Police no longer has an authority to hold any set of that person’s fingerprints.

The Bill will also streamline the timeframe for destroying fingerprints under the Crimes Act. Presently, fingerprints taken from suspects must be destroyed ‘immediately’ after expiry of the six-month timeframe after the taking of the fingerprints if a person is not charged or the charge is not proceeded with. The Bill will amend the timing of destruction so that fingerprints will be required to be destroyed ‘within one month’ rather than ‘immediately’ after the expiry of the specified timeframe. This will streamline Victoria Police’s operations and align with the existing timeframe for the destruction of fingerprints in circumstances where the person is found not guilty.

Importantly, the reform will continue to be subject to the robust existing safeguards in the Crimes Act. The Crimes Act creates a summary offence, which will continue to apply, for a person who fails to destroy fingerprints or uses them after they should have been destroyed.

Assumed identities reforms

The Bill modernises and streamlines the Crimes (Assumed Identities) Act 2004, recognising the present-day reality that most assumed identities are online personas. In a 2020–21 report, Victoria Police identified that 1445 of the 1571 authorisations made under the Assumed Identities Act during that financial year related to online personas. These personas are often most appropriately operated by highly trained public service employees of Victoria Police.

The Bill will remove the requirement for the Chief Commissioner of Police to be satisfied that it would be impossible or impracticable for a sworn officer to acquire or use an assumed identity, before authorising a public service employee to do so. These reforms will bring Victoria more closely into line with the Commonwealth and New South Wales, which both include public servants in the definition of law enforcement officers who can operate an assumed identity.

The Bill increases the number of delegates that may exercise the Chief Commissioner of Police’s assumed identities functions at any one time, from four individuals to 10, and allows the Chief Commissioner to delegate to an Inspector, rather than a Superintendent. The Bill also extends the duration of assumed identity authorisations for relevant Victoria Police employees from three months to 12 months, aligning it with the timeframe to review assumed identity authorisations for law enforcement officers under the Assumed Identities Act.

Importantly, Victoria Police employees who assume online personas will continue to be supervised by sworn officers at or above the rank of Sergeant. The Bill introduces some operational flexibility into this supervision requirement, removing the requirement to name a specific police officer who will supervise the Victoria Police public service employee when authorising the use of an assumed identity. This will again reduce the administrative burden involved in varying authorisations each time a named supervisor changes role or is no longer available.

Conclusion

The Bill modernises and streamlines essential powers to investigate and combat crime, and target proceeds of crime in Victoria. It acquits significant commitments of the Community Safety Statement 2018–19, giving police and law enforcement partners the tools they need to respond to contemporary criminal offending and keep our community safe.

I commend this Bill to the house.

Mr RICH-PHILLIPS (South Eastern Metropolitan) (17:33): I move, on behalf of Dr Bach:

That debate on this bill be adjourned for one week.

Motion agreed to and debate adjourned for one week.