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Asset Forfieture


Andrew Fraser

For more than a decade, the ACT has had wide-ranging legislation that provides for the confiscation of assets in relation to criminal investigations.

The laws give police very wide powers in relation to seizure and confiscation, including powers over property that is in the control of people unassociated with any criminal offence.

The Confiscation of Criminal Assets Act 2003 (ACT) operates on the principle that a person should not be enriched because of the commission of an offence.

This applies whether or not anyone has been convicted of an offence.

The Act also aims to:

  • Deprive a person of all material advantage derived from the commission of an offence, whatever the form into which property or benefits derived from the offence may have been changed.
  • Deprive a person of all material advantage derived from the commission of an offence, whatever the form into which property or benefits derived from the offence may have been changed.
  • Enable the effective tracing and seizure by law enforcement authorities of property used, or intended to be used, in relation to the commission of an offence and all material advantage derived from the offence.

The Act applies to property, or dealings with property, whether the property is in the ACT, or within Australia or overseas. Decisions under the Act are made on the civil standard, that is the balance of probabilities and not on the criminal standard: beyond reasonable doubt.


What powers does the court have?

A court may make a restraining order preventing the disposal or other dealing with property. A restraining order may also be made to secure a property for the payment of a penalty order.

Property may be restrained even though it is not the offender’s property.

A court that convicts a person of a relevant offence may make an order (a conviction forfeiture order) for the forfeiture to the Territory of tainted property in relation to the offence (whether or not the tainted property is restrained).

If a person is convicted of a serious offence (generally an offence punishable by imprisonment for 5 years or more), all restrained property is, by the operation of the Act, forfeited to the Territory (an automatic forfeiture). Again, property may be forfeited even though it is not the offender’s property.

If a court is satisfied on the balance of probabilities that a person has committed a serious offence, it may make an order (a civil forfeiture order) for the forfeiture to the Territory of all restrained property even though the person has not been convicted, or the person has been cleared, of the relevant offence.

A court may order the payment to the Territory (a penalty order) of the value of the tainted property and the advantages and other benefits derived in any way from the commission of a relevant offence and for restrained property to be sold to satisfy the penalty order.

Provision is made for an order that property be excluded from forfeiture (an exclusion order) and forfeited property can be returned or compensation paid for it in certain circumstances. Provision is also made for the buyback of interests in forfeited property.

What is tainted property?

The Act specifies that tainted property means:

  • Property that was used, or was intended by an offender to be used, in relation to the commission of the offence; or
  • Property that was derived by anyone from the commission of the offence; or
  • Property that was derived by anyone from property mentioned in paragraph(a) or (b); and includes an amount of money held in an account with a financial institution that represents the value of property mentioned in paragraph (a), (b) or (c) that has been directly or indirectly credited to the account.

Any property found in the possession of an offender at the time of, or immediately after, the commission of the offence is taken to be property that was used, or was intended by the offender to be used, in relation to the commission of the offence, unless the contrary is established by the offender.

The definition is very broad, and can include money in an account unconnected with an offence. For example, money stolen during the commission of a robbery is deposited in one or more accounts with a credit union and later transferred to a bank account that also contains money unconnected with the offence. The money in that bank account to the value of the money stolen during the commission of the offence is defined as tainted property.

The Act defines also “unclaimed tainted property”, which is “tainted property in relation to an offence [that is] not claimed by anyone, even if it is not possible to identify the offence or an offender”. For example, the definition includes a large quantity of jewellery found in a car that has been recently used by several people and that is not claimed by anyone.

Penalties in relation to restraining orders

A person contravenes a restraining order if:

  • The person deals with property; and
  • The property is subject to a restraining order; and
  • The person knows that, or is reckless about the fact that, the property is subject to a restraining order; and
  • The dealing with the property contravenes the order.

The maximum penalty is a fine of up to 500 penalty units and/or imprisonment for 5 years.

A court can give directions prohibiting or restricting the publication or disclosure of information about restraining orders and breaching that direction is subject to heavy penalties.

The directions might concern all or any of the following:

  • The fact that an application for the order, or that a restraining order, has been made.
  • The application for the order.
  • The supporting affidavit for the order and any other affidavit filed in relation to the application.
  • Any information about the proceeding (whether or not a hearing has been held).

Any evidence given, statement made or thing done during the proceeding.

Any “information, document or thing” derived from anything mentioned above.

A person commits an offence if they had notice of the direction and publishes or discloses the matter to someone else, even if the other person could only infer from the information disclosed the matter to which the direction related.

There are exceptions, including if the disclosure is made to a police officer.

Time allowed to seek restraining orders

An application for a restraining order can be made for several years after the incident that gave rise to the application.

The Act specifies that the application must be made before the end of the longer of the following periods:

  • If an indictment has been presented against the offender, and the offender has not been convicted or cleared of the offence—2 years after the day the indictment was presented.
  • If the offender has been convicted of the offence (and not cleared)—2 years after the day of the conviction;
  • in any case—6 years after the day the offence was committed (or is alleged to have been committed).

Once in place, however, a restraining order is not time-limited. It ends:

  • If another order under the Act (for example, an exclusion order (which excludes certain property from restraint or forfeiture) is made).
  • If the property is forfeited under the Act, when the property vests in law in the Territory and the public trustee takes control of the property; or
  • If the property is disposed of by the public trustee to satisfy a penalty order (an order for the payment by an offender of the value of benefits derived by an offender from the commission of an offence).

If a matter is dealt with to conviction, and the restraining order was made before that conviction, and a forfeiture application or a penalty application is not made within six months of the conviction, the restraining order ceases.

Having orders revoked

A person with an interest in restrained property may apply to the court that made the restraining order for the revocation, by order, of the restraining order if the office of the Director of Public Prosecutions did not give the person notice of the application for the order.

The court must not make an order revoking the restraining order unless it is satisfied that there were not and are no longer sufficient grounds for making the order.

However, if the DPP has told the court that the restraining order applies to property that has evidentiary value in a criminal proceeding, the court must not revoke the restraining order without the DPP’s agreement but may, by order, vary the restraining order to exclude any part of the property that the DPP has told the court does not have evidentiary value.

If the DPP proposes to oppose an application by a person under this section for the revocation of a restraining order, the DPP must give the applicant, and anyone else to whom notice of the application was given, written notice of the grounds on which the application will be opposed.

The owner of restrained property may apply to the court that made the restraining order for the restraining order to be revoked or varied.

The court must not make an order revoking the restraining order unless the DPP has told the court that the owner has given:

  • Security satisfactory to the DPP to the value estimated by the DPP of any order that may be sought under this Act in relation to the offence in relation to which the order was made (and any related offence); or
  • An undertaking satisfactory to the DPP about the restrained property.

However, if the owner can only give security or an undertaking that partly satisfies the DPP, the court may, by order, vary the restraining order to exclude particular property in relation to which the DPP has told the court that satisfactory security or a satisfactory undertaking has been given.

Again, if the DPP has told the court that the restraining order applies to property that has evidentiary value in a criminal proceeding, the court must not revoke the restraining order without the DPP’s agreement but may, by order, vary the restraining order to exclude any part of the property that the DPP has told the court does not have evidentiary value.

If the DPP proposes to oppose an application by a person under this section for the revocation of a restraining order, the DPP must give the applicant, and anyone else to whom notice of the application was given, written notice of the grounds on which the application will be opposed.

Exclusion orders

The criteria for obtaining an exclusion order, which frees up certain property from restraint or forfeiture, is complex and the threshold is high.

If the application is made by an offender, the relevant court must not make an exclusion order for the property unless the court is satisfied that the property:

  • Is not tainted property in relation to any offence against a territory law, or a law of the Commonwealth, a State, another Territory or a foreign country; and
  • Is not required to be restrained to satisfy a penalty order; and
  • Does not have evidentiary value in any criminal proceeding.

However, if the court is satisfied that the property is not tainted property, but considers that the property (or any part of the property) may be required to be restrained to satisfy a penalty order, the court must make an exclusion order declaring that the property (or part of it):

  • Is not subject to forfeiture under a conviction forfeiture order; but
  • Is to remain restrained for the purpose of satisfying a penalty order.

If the application is made by a person other than an offender, the court must not make an exclusion order for the property unless it is satisfied that:

  • The applicant has an interest in the property; and
  • The applicant was not a party to the relevant offence or any related offence; and
  • The interest is not subject to the effective control of an offender; and
  • The interest is not tainted property in relation to the relevant offence or any related offence; and
  • If the interest was acquired completely or partly, or directly or indirectly, from the offender, that the interest was acquired honestly and for sufficient consideration and the applicant took reasonable care to establish that the interest may be lawfully acquired by the applicant; and
  • The property does not have evidentiary value in any criminal proceeding.

Police powers regarding confiscation

The police can use a wide range of notices and orders in relation to the confiscation of assets, including inquiry notices, monitoring orders, transaction-suspension orders, examination orders and property-production orders.

Inquiry notices to financial institutions

An inquiry notice requires a financial institution to give police information in relation to:

  • An account (including safe-deposit boxes) with the institution (including whether an account has existed or does exist); or
  • A transaction (other than in relation to an account) conducted, or proposed to be conducted, by or with the institution (including whether a transaction has been conducted).

It is an offence to contravene an inquiry notice, to give false or misleading information in purported compliance with an inquiry notice, or to disclose the existence or operation of the notice. The maximum penalty is a fine of up to 200 penalty units and/or two years’ imprisonment.

A police officer of the rank of commander or higher may give an inquiry notice to a financial institution, subject to certain criteria.

Monitoring orders

No advance notice to anyone is required of the application for a monitoring order, and the application may be heard in closed court, without the alleged offender or public present.

A monitoring order requires a financial institution to give a police officer information obtained or held by the institution about transactions conducted, or proposed to be conducted, by a person with the institution.

The application may be made only if the police officer has reasonable grounds for suspecting that the person in relation to whom the order is sought:

  • Has committed, or is about to commit, a serious offence; or
  • Was involved in the commission, or is about to be involved in the commission, of a serious offence; or
  • Has derived, or is about to derive, property or a benefit from the commission of a serious offence.

A serious offence means an offence against a territory law or the law of the Commonwealth, a State or another Territory that is punishable by imprisonment for 5years or longer.

Contravening a monitoring order is punishable upon conviction by a fine of up to 200 penalty units and/or two years’ imprisonment.

Transaction-suspension orders

No advance notice to anyone is required of the application for a transaction-suspension order, and the application may be heard in closed court, without the alleged offender or public being present.

A transaction-suspension order requires a financial institution, on becoming aware of a transaction (including a proposed transaction) to be conducted through a stated account, to:

  • Immediately tell a police officer about the transaction; and
  • Delay the processing of the transaction for 48 hours after the institution becomes aware of the transaction.

The application may be made only if the police officer has reasonable grounds for suspecting that:

  • the person in relation to whom the order is sought:
    • Has committed, or is about to commit, a money laundering offence; or
    • Was involved in the commission, or is about to be involved in the commission, of a money laundering offence; or
    • Has derived, or is about to derive, property or a benefit from the commission of a money laundering offence; and
  • the account in relation to which the order is sought is operated by, or under the effective control of, the person.

A transaction-suspension order cannot be made in relation to a safe-deposit box.

Production orders for property-tracking documents

A production order requires a person to give a police officer any property-tracking documents in the person’s possession or control that relate to the person or property (or both) stated in the order.

As with monitoring and transaction-suspension orders, no advance notice to anyone is required of the application for the order, and the application may be heard in closed court, without the alleged offender or public present.

A property-tracking document means:

  • A document relevant to identifying, locating or quantifying:
    • Property (including tainted property and property under the effective control of a person) in relation to which action has been or could be taken under this Act or a corresponding law; or
    • Benefits derived by a person from the commission (or the alleged commission) of a relevant offence; or
    • Evidence in relation to property or benefits mentioned in (i) or (ii); or
  • A document relevant to identifying or locating a document necessary for the transfer of property mentioned in paragraph(i); or
  • A document relevant to understanding a document mentioned in (a) or (b).

On application by the police officer, a court hearing an application for a production order may declare that the order is a non-disclosable production order. The disclosure of the existence or operation of a non-disclosable information order is prohibited.

Examination orders and notices

An examination notice is a notice by an authorised investigator requiring a person to give the investigator any information or documents (or both) the person has in relation to the investigation stated in the notice.

An application for an examination order may be made only if the authorised investigator has reasonable grounds for suspecting that the person (or people) can give the investigator information or documents, including property-tracking documents, (or both) in relation to the investigation for which the investigator is an authorised investigator (that is a police officer of superintendent of higher rank) .

“Investigation” means:

  • An investigation of any of the following:
  • Any property of or under the effective control of, and any dealings with property by, the person or an associate of the person in relation to which action has been or could be taken under the Confiscation of Criminal Assets Act 2003 (ACT) or a corresponding law;
  • Benefits derived by the person, or an associate of the person, from the commission (or the alleged commission) of a relevant offence;
  • The financial affairs of the person or an associate of the person; or
  • An investigation to decide whether an application could be made for an order under the Act, a corresponding law order or a search warrant in relation to anyone; or
  • An investigation to decide whether a proceeding could be begun against anyone for an offence against the Act or a corresponding law or for a money-laundering offence.

As for the related orders, no advance notice to anyone is required of the application for the order, and the application may be heard in closed court, without the person to whom the notice applies or the public being present.

To grant an order, the court must be satisfied that there are reasonable grounds for the investigator’s suspicions.

The disclosure of the existence or operation of a non-disclosable information order is prohibited and punishable upon conviction by a fine of up to 200 penalty units and/or two years’ imprisonment.

A person to whom an examination notice applies may be examined on oath or affirmation by the authorised investigator.

The authorised investigator may:

  • Require the person either to take an oath or make an affirmation; and
  • Administer an oath or affirmation to the person.

The authorised investigator may require the person to answer a question that is put to the person at the examination.

If you receive an examination notice, you should contact a lawyer who practices in the criminal law. Lawyers are allowed to accompany their clients at the examination.

Non-compliance at examination

A person who knows that, or is reckless about the fact that, a person is an authorised investigator and obstructs, hinders, intimidates or resists the investigator in the exercise of the investigator’s functions is liable upon conviction to a fine of up to 200 penalty units and/or imprisonment for two years.

Failure to attend for an examination carries the same maximum penalties.

A person who is required by an examination notice to attend an examination commits an offence if, during the examination, the person:

  • Fails to be sworn or to make an affirmation that the authorised investigator requires the person to swear or make; or
  • Fails to answer a question that the authorised investigator requires the person to answer; or
  • Fails to produce a document that the person is required under the examination notice to produce at the examination (as far as it was practicable to do so); or
  • Leaves the examination before being excused by the authorised investigator.

The maximum penalty is a fine of up to 200 penalty units and/or imprisonment for two years.


where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

Why Choose Armstrong Legal?

Contact Armstrong Legal:
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