Drugs, Poisons and Controlled Substances (Confiscation) Regulations 2024

Four key concepts structure the operation of the Regulations, each drawn from the forms themselves and the underlying DPCS Act.

Tainted property. This term appears in both forms in bold italics and with an asterisk, indicating it is a defined term under the Confiscation Act 1997. The forms state that the magistrate or court made the direction on the basis that the property was also tainted property under that Act. Tainted property under the Confiscation Act generally means property used in connection with or derived from certain offences (including drug offences). The direction under the DPCS Act converts the legal basis for holding the property from evidentiary detention under the DPCS Act to detention under the Confiscation Act, which has broader powers of forfeiture and different return mechanisms.

Direction by magistrate at warrant stage (section 81(1A)). Form 1 (prescribed under regulation 5) applies where a magistrate, when issuing a warrant under section 81 of the DPCS Act, directs that the police officer who applied for the warrant hold or retain specified property seized under the warrant after it is no longer required for evidentiary purposes. The direction is made at the time of warrant issue, before any property is seized. The magistrate must be satisfied the property is tainted property under the Confiscation Act. This is an ex parte direction: the person with an interest in the property is not notified at that point.

Direction by Magistrates' Court after warrant return (section 81C). Form 2 (prescribed under regulation 6) applies where, after the warrant is executed and returned to the Magistrates' Court, the Court directs under section 81C that a police officer hold or retain property described in the notice after it is no longer required for evidentiary purposes. Again, the basis must be that the property is tainted property under the Confiscation Act. This direction occurs after seizure and after the warrant is returned, but still before any criminal trial (if any) is concluded.

Notice of holding. Both forms are headed "NOTICE THAT SEIZED PROPERTY IS BEING HELD". The notice informs the recipient that their property is being held and will be dealt with under the Confiscation Act 1997 "as if it had been seized under a warrant under section 79 of that Act". This is a critical equivalence: section 79 of the Confiscation Act deals with search warrants issued specifically for confiscation purposes. The notice transforms the legal character of the detention. The recipient is told of certain circumstances under which property may be returned under section 97 of the Confiscation Act. Contact details for Victoria Police or the Asset Confiscation Operations business unit in the Department of Justice and Community Safety are to be inserted. The form does not specify a time limit within which the person must act to seek return of the property, nor does it inform them of any right to challenge the direction itself.

The Regulations directly affect persons who have an interest in property seized under a warrant issued under section 81 of the DPCS Act, where a magistrate or the Magistrates' Court has directed that the property be held for confiscation purposes. These persons may include the suspect under investigation, joint owners, family members, business partners, secured creditors, lessors, or any other person with a legal or equitable interest in the property. The forms are addressed generically: "You have received this notice because a magistrate has made a direction affecting property in which you have an interest." The notice does not require the recipient to be the person charged with an offence; it can be anyone the police identify as having an interest. This broadens the regulatory impact beyond criminal defendants to third parties whose property is caught up in a drug investigation. The Regulations also affect police officers and the Asset Confiscation Operations unit, who must use the prescribed forms to lawfully continue holding the property after the evidentiary need ceases. Failure to use the prescribed form may render the continued detention unlawful or at least challengeable. Magistrates and the Magistrates' Court are indirectly affected: their directions under sections 81(1A) and 81C of the DPCS Act trigger the obligation to give notice using these forms. Legal practitioners advising clients on property seizures must be familiar with the distinction between the two forms and the timing of the direction (at warrant issue vs after warrant return) to advise on strategy for challenging the detention or seeking return. The Victorian Department of Justice and Community Safety is affected as the contact point for enquiries. Finally, the Regulations affect any person who might have a claim for return of property under section 97 of the Confiscation Act, because the notice is the trigger for that person to know their rights.

The key duty imposed by the Regulations is on the police officer who holds seized property after it is no longer required for evidentiary purposes: that officer must give a notice in the prescribed form to the person who has an interest in the property. Section 81A(2)(b) of the DPCS Act requires the notice to be in the prescribed form, and regulation 5 provides that Form 1 is the prescribed form for that purpose. Similarly, section 81D(2)(b) requires the prescribed form, and regulation 6 provides Form 2. The duty is not merely administrative; it is a statutory precondition for the lawful continued detention of property under the Confiscation Act regime. If the notice is not given, or is given in a non-compliant form, the police officer may be detaining property without statutory authority, exposing the state to potential civil liability for conversion or trespass to goods. The notice must contain the information set out in the form: the time and date of the warrant, the magistrate's name, the issuing police officer's details, the address of execution, a description of the property, and contact details. The form also states that the property will be held and dealt with under the Confiscation Act 1997 "as if it had been seized under a warrant under section 79 of that Act". The rights of the person receiving the notice are stated only in summary form on the notice: "Property seized under a warrant under section 79 of the Confiscation Act 1997 may be returned to you in certain circumstances under section 97 of that Act." The notice does not detail what those circumstances are, nor does it inform the person of any right to apply to the court for the return of the property, to challenge the direction that the property is tainted, or to seek compensation. The person's right to apply for return under section 97 of the Confiscation Act is contingent on factors not specified in the notice, such as whether the person is the owner, whether they were involved in the offence, or whether the property is genuinely tainted. The notice also does not provide a right to be heard before the direction is made, as the direction under section 81(1A) is made ex parte at warrant issue. The person's practical right is to contact Victoria Police or the Asset Confiscation Operations unit for more information, as indicated in the form.

The Regulations themselves do not create any penalties for non-compliance. They are purely procedural, prescribing forms. The penalty for a police officer who fails to use the prescribed form is not defined in these Regulations; it arises from the underlying statutes. If property is held without the prescribed notice being given, the detention may be unlawful, and the police officer may be liable in tort for detinue or conversion. The property owner could seek an order for return of the goods or damages. Additionally, if the police officer gives a notice that is not in the prescribed form, the requirement under section 81A(2)(b) or 81D(2)(b) of the DPCS Act is not met, and the deeming provision that the property is held as if seized under section 79 of the Confiscation Act may not take effect. This could unravel the entire confiscation process, as the property would then be held without statutory authority. The person could apply to the Magistrates' Court or the Supreme Court for an order that the property be released. For a person who receives a notice, there is no penalty for ignoring it; the consequence is simply that the property may be forfeited or disposed of under the Confiscation Act without the person contesting it. The Confiscation Act itself provides for forfeiture of tainted property, and a person who fails to apply for return within time may lose their interest. The Regulations also do not create an offence for providing false information on the notice, though the general law (perjury, giving false information to police) would apply if the person receiving the notice gave false information when enquiring. The enforcement of the underlying confiscation regime is through the Confiscation Act, which includes powers to seize, freeze, and forfeit property, as well as court orders for examination and ancillary orders. The Regulations play a supporting role: if the notice is not given correctly, the enforcement of confiscation may be stalled or reversed. In economic terms, the cost of compliance (printing forms, serving notice) is low for the state, but the cost of non-compliance (potential return of property, damages, loss of confiscation) creates an incentive to comply. For the property owner, the notice imposes a cost: they must take steps to protect their property rights or risk losing them by default.

The Regulations sit at the intersection of two Victorian statutes: the Drugs, Poisons and Controlled Substances Act 1981 and the Confiscation Act 1997. The DPCS Act provides the primary power to issue search warrants (section 81) and to direct that property be held after evidentiary purposes (sections 81A and 81C). The Regulations prescribe the form of notice for those directions. The Confiscation Act 1997 provides the substantive law for dealing with tainted property. The notice informs the recipient that the property will be dealt with under the Confiscation Act "as if it had been seized under a warrant under section 79 of that Act". Section 79 of the Confiscation Act allows a magistrate to issue a search warrant for the purpose of finding tainted property. By deeming the property to be held under that section, the Confiscation Act's procedural safeguards and return mechanisms (including section 97) are engaged. The Subordinate Legislation Act 1994 governs the making and sunsetting of the Regulations: they will expire 10 years after making (21 May 2034) unless remade. The Interpretation of Legislation Act 1984 applies to the construction of the Regulations, as noted in the endnotes regarding style changes, headings, examples, notes, and punctuation. The Regulations revoke the Drugs, Poisons and Controlled Substances (Confiscation) Regulations 2014 (S.R. No. 50/2014). The old regulations presumably prescribed earlier versions of the same forms; the new Regulations update the forms and revoke the old instrument. There is no interaction with Commonwealth laws on the face of the instrument, but if the seized property relates to a Commonwealth drug offence, parallel Commonwealth confiscation laws (such as the Proceeds of Crime Act 2002) may also apply, and the state police may need to coordinate with Commonwealth authorities. The Regulations do not address that interaction. The Criminal Procedure Act 2009 and the Magistrates' Court Act 1989 govern the court procedures for directions under sections 81A and 81C, but the Regulations do not reference them. The notice itself is not a court order; it is a notification of a direction that has already been made. The property owner's recourse is through the Confiscation Act, not through an appeal of the direction itself, although the direction may be challengeable on administrative law grounds (e.g., jurisdictional error, Wednesbury unreasonableness) through judicial review. The Regulations do not prescribe any time limit for serving the notice. That gap could create uncertainty: if police delay in giving the notice, the property may be held for an extended period without the owner knowing the basis for continued detention.

The Drugs, Poisons and Controlled Substances (Confiscation) Regulations 2024 are a new instrument that replaces the 2014 regulations. The endnotes state that there are no amendments made to the 2024 Regulations by statutory rules, subordinate instruments, or Acts. The instrument is in its first version (Version No. 001) as at 1 June 2024. The 2014 regulations (S.R. No. 50/2014) are revoked in full by regulation 4. The explanatory details note that the 2014 regulations were amended by S.R. No. 50/2014 (which appears to be a cross-reference to itself; this may be an error or refer to an amendment instrument with the same number). The 2014 regulations would have prescribed forms for the same sections (81A and 81D) and would also have been made under section 132 of the DPCS Act. The 2024 Regulations are not simply a reprint; they are a new statutory rule made on 21 May 2024, coming into operation on 1 June 2024. The table of amendments in the endnotes shows no amendments to the 2024 Regulations. This is typical for a newly made instrument. The Regulations are subject to the automatic sunsetting provisions of the Subordinate Legislation Act 1994, which means that unless a decision is made to remake them, they will expire ten years after the day of making (21 May 2034). During that decade, they may be amended by subsequent statutory rules. The change from the 2014 forms to the 2024 forms is likely minor - the structure of Form 1 and Form 2 is almost identical, both containing the same fields. The 2024 version updates the name of the business unit from whatever was used in 2014 (possibly "Asset Confiscation Operations" was previously a different name) and updates contact details. The change also reflects the fact that the 2014 regulations would have been nearing sunset in 2024 (10 years from 2014) and needed replacement. The revocation of the old regulations and the making of new ones resets the sunset clock for another 10 years. This is a procedural renewal; no substantive policy change is evident from the forms themselves.

The source does not cite any cases, and the Regulations themselves have not been subject to litigation (being new and unamended). However, the predecessor 2014 regulations may have been the subject of litigation in the context of challenges to property seizures and forfeitures under the Confiscation Act 1997. Counsel should be aware that the validity of a notice under sections 81A or 81D could arise as a preliminary issue in confiscation proceedings. If a notice is not in the prescribed form, the property owner may argue that the property is not lawfully held under the Confiscation Act, and that the continued detention is unlawful. The property owner might then apply for the property to be returned under section 97 or under inherent jurisdiction. The courts may also consider whether the direction under section 81(1A) or 81C of the DPCS Act was validly made, particularly if the magistrate or court did not have sufficient evidence that the property was tainted property. The notice itself is not a reviewable decision; it is a notification of the direction. But the adequacy of the notice (e.g., whether it accurately describes the property, whether it was served on the correct person) could affect the rights of the recipient. A person who receives a notice may challenge the detention by way of judicial review of the direction, or by applying for return of property under the Confiscation Act. The courts have considered similar provisions in other states, but Victorian case law on these specific notice requirements is sparse. Practitioners should note that the Regulations came into force on 1 June 2024; any litigation regarding notices given before that date would be governed by the 2014 regulations. The 2024 Regulations will apply to any direction made on or after 1 June 2024. The forms are mandatory ("the prescribed form is Form 1") but minor deviations (e.g., missing a field) may or may not invalidate the notice depending on the language of sections 81A and 81D. The forms include fields for time, date, names, and descriptions, but do not require a signature or seal. The lack of a signature field may be a deliberate simplification, but it could also create litigation over whether the notice is properly attributable to the police officer. No cases are cited in the instrument, so the analysis is necessarily forward-looking.

Several features of the Regulations and the forms are worth drawing attention to.

The direction is ex parte and made early. In Form 1, the magistrate makes the direction at the time of issuing the warrant, before any property is seized and before any person with an interest can be heard. The property owner has no opportunity to contest the characterisation of the property as tainted at that stage. The notice arrives after the direction is made and the property is seized. The recipient must then navigate the Confiscation Act to seek return. The burden of proof falls on the person seeking return, not on the state.

No deadline for service of notice. The Regulations do not specify a period within which the notice must be given. The DPCS Act sections 81A and 81D require the notice to be given when the property is no longer required for evidentiary purposes, but there is no hard deadline. This gap can leave property in limbo: the police may take months to determine evidentiary need, and then may delay serving the notice. During that time, the property is held without the owner knowing its status. The owner could seek an order for return under the DPCS Act before the notice is given, but that requires knowledge of the seizure.

The forms do not inform the recipient of key rights. The notice states only that property may be returned "in certain circumstances" under section 97 of the Confiscation Act. It does not explain what those circumstances are, how to apply, what the time limits are, or whether legal aid is available. A self-represented recipient may assume the property is lost and not take action. The forms also do not mention any right to challenge the direction itself or to seek compensation for wrongful detention.

Property may be held indefinitely under the Confiscation Act. The notice states the property will be held and dealt with under the Confiscation Act. That Act permits the Director of Public Prosecutions to apply for forfeiture orders, restraining orders, or other orders. If no application is made, the property may remain in custody for an extended period. The owner must be proactive. The notice does not warn that failure to act may result in forfeiture by default.

Third party interests are not distinguished. The forms do not differentiate between the suspect's interest and that of an innocent co-owner or secured creditor. The notice says "property in which you have an interest" without explaining that the property may be jointly owned. An innocent owner may not realise they need to take separate legal steps.

No provision for compensation. The forms say nothing about compensation for loss of use of the property if it is later found not to be tainted. The Confiscation Act has limited compensation provisions, but they are not referenced. The property owner bears the cost of loss of use, storage, and legal fees.

The forms are prescribed but not mandatory in the strict sense. Regulation 5 says "the prescribed form is Form 1 of Schedule 1". This is directory language. Courts may hold that substantial compliance is sufficient, especially if the recipient was not prejudiced. But relying on substantial compliance creates uncertainty. The safe approach for police is to use the exact form.

For police officers, compliance is straightforward in form but requires care in substance. The officer who applied for the warrant must, at the time of application, obtain a direction from the magistrate under section 81(1A) if they intend to hold the property for confiscation after evidentiary purposes are complete. Once the property is no longer required for evidence, the officer must serve a notice in Form 1 (Schedule 1) on each person known to have an interest in the property. The notice must be completed with all details: time, date, magistrate's name, officer's details, address, property description, and contact details. The contact details should be the relevant police station or the Asset Confiscation Operations business unit. The notice must be served; the Regulations do not specify method, but personal service or registered post would be prudent. A file copy should be retained. For directions under section 81C (after warrant return), the procedure is similar but the direction is obtained from the Magistrates' Court when the warrant is returned. The police officer must then serve Form 2. The officer should also ensure that any additional requirements of the Confiscation Act 1997 are met, such as notifying the Director of Public Prosecutions or the Asset Confiscation Operations unit. The officer should not rely solely on the notice; they should also consider whether an application for a restraining order under the Confiscation Act is appropriate.

For persons who receive a notice, compliance means acting promptly to protect their interests. The notice is not an invitation to ignore. The person should contact Victoria Police or Asset Confiscation Operations at the details provided to obtain more information about the specific property and the basis for the direction. They should also seek independent legal advice, particularly if the property is substantial (real estate, vehicles, cash) or if there are third party interests involved. The person should examine the description of the property to ensure it matches what was seized. If the description is incorrect, they should raise that immediately. The person should be aware that the notice is not the final step; they may need to apply to the Magistrates' Court or the Supreme Court for return of the property under section 97 of the Confiscation Act, or for a variation of the direction. The period within which an application must be made is not stated in the notice, so the person should not delay. The person should also gather evidence of their interest in the property (title deeds, receipts, loan documents) and evidence that the property is not tainted (e.g., proof of legitimate income used to purchase the property). The practical cost of compliance for the recipient can be significant: legal fees, loss of use of the property, and the burden of proving innocence of the property's connection to crime. For businesses, the receipt of a notice may trigger obligations to inform creditors, insurers, or joint venture partners. The Regulations themselves do not exempt any class of property from the notices, so all types of property (cash, vehicles, real estate, shares) are within scope. The Asset Confiscation Operations unit may provide guidance or negotiate a release, but the incentive for the state is to retain property pending forfeiture. The recipient should not assume polite enquiry will result in return; formal court action may be required.