Confiscation & Proceeds of Crime
What is Proceeds of Crime Litigation?
In Australia, at State, Territory and Commonwealth levels, laws have been passed enabling government authorities to restrain and then forfeit property which has been derived from, or used on connection with, unlawful activity.
The legislation includes:
- Commonwealth: Proceeds of Crime Act 2002
- Vic: Confiscation Act 1997
- Tas: Crime (Confiscation of Profits) Act 1993
- NSW: Criminal Assets Recovery Act 1990
- SA: Criminal Assets Confiscation Act 2005
- WA: Criminal Property Confiscation Act 2000
- Qld: Criminal Proceeds Confiscation Act 2002
- NT: Criminal Property Forfeiture Act 2002
- ACT: Confiscation and Criminal Assets Act 2003
Whilst there are stark differences between the various confiscation schemes, there are common themes.
Relevantly:
- property is forfeited without just compensation
- property can be forfeited without the need for a conviction (i.e. civil forfeiture)
- once restrained, a reverse onus applies requiring the person who seeks to free the property from restraint or forfeiture from proving the statutory test
- there are strict timeframes within which steps must be taken, failing which property may be forfeited.
Whilst the social utility of confiscating proceeds of crime is obvious and needs no explanation, in practice litigation under proceeds of crime legislation often results in harsh, disproportionate and – at times – unintended consequences. Occasionally, those consequences arise from, or are exacerbated by, a lack of understanding by those who practise in the area.
This website is intended to provide a resource for those involved in proceeds of crime litigation.
