Sections 38(2) and 45(1) of the Confiscation Act 1997 (Vic) are alternative discretionary powers enlivened by the same threshold test of 'undue hardship'; there is no lower threshold for s 45(1) than for s 38(2). The 2014 substitution of 'undue hardship' for 'hardship' introduced a requirement of greater stringency than the pre-amendment test, and pre-amendment authorities on 'hardship' do not govern the amended provisions. The words 'undue hardship' are ordinary English words whose application depends on the individual circumstances of each case, and no synonym or judicial gloss can supplant the statutory language.
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