Asset Forfeiture & Confiscation
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The Confiscation Act 1997 (Vic)(“CA”) is a significant piece of legislation in Victoria, Australia, aimed at depriving individuals of the proceeds of crime and preventing further criminal activities.
At MK Law, we recognise the significant implications of asset confiscation. These offenses can have devastating effects not only on those charged but also on innocent third parties swept up in the confiscation process.
What is the purpose and Scope of the CA?
- Targeting Proceeds of Crime:
Originally intended to confiscate the proceeds from serious crimes (like drug trafficking and cultivation), the act now applies to a broader range of offenses. This expansion means that innocent third parties—those not charged with any crime—can also have their assets confiscated under the act.
- Innocent Third Parties:
This is a critical aspect of the legislation. Innocent individuals can be adversely affected by a “blanket” application of the law, where their property may be unfairly targeted for confiscation despite their lack of involvement in criminal activity.
Objectives of the CA:
The act has several key objectives:
- Depriving Offenders: To remove the financial benefits gained from specific offenses and to confiscate “tainted property.”
- Deterrence: To deter individuals from engaging in criminal activities by threatening the loss of assets.
- Disruption of Criminal Activity: To disrupt ongoing criminal enterprises by removing the means through which they operate.
- Undermining Criminal Profitability: To reduce the financial gains that can be made from serious crimes.
What are the mechanisms of confiscation?
The act employs various methods to achieve its objectives:
- Restraining Orders:
Prevents individuals from disposing of or dealing with property while the confiscation process is ongoing.
- Forfeiture Orders:
Orders the actual confiscation of property.
- Pecuniary Penalty Orders (PPOs):
Monetary penalties based on the financial proceeds of the crime.
- Property Substitution Orders:
Allows the state to substitute assets of the accused with those of a third party under certain conditions.
Types of Forfeiture Orders:
- Discretionary Conviction-Based Forfeiture: The Director of Public Prosecutions (DPP) can apply for a forfeiture order regarding “tainted property” if a defendant is convicted of a Schedule 1 offense, but the court has discretion over whether to grant the order.
- Automatic Forfeiture: For more serious offenses (Schedule 2), all property restrained by the Crown is automatically forfeited 60 days after conviction unless an exclusion order is applied for and granted.
- Civil Forfeiture Applications: This type of forfeiture does not require a conviction. The Crown must show reasonable suspicion that the property is tainted in relation to suspected Schedule 2 offenses.
Understanding Key Terms:
- Tainted Property:
Broadly defined as property used in connection with the commission of an offense or derived from criminal activities. The Crown must demonstrate a link between the property and the offense for it to be classified as tainted.
- Interest in Property:
Refers to any legal or equitable interest in property, which can include control over it. This concept is crucial as it determines whether the property can be restrained or forfeited.
Exclusion Orders:
Exclusion applications can be made within 90 days of receiving notice of the restraining order (section 40R). Additionally, applications for exclusion may be submitted before the end of 60 days after the property is forfeited to the Minister (section 40ZC(2)(a)).
Individuals claiming an interest in restrained property can apply for an exclusion order, arguing they are not connected to the offending. The burden of proof lies with them, requiring substantial evidence of their non-involvement and legal interest in the property.
Schedule 1 Offenses:
Schedule 1 offenses encompass various crimes under specific legislation, including:
- Aboriginal Heritage Act 2006
- Casino Control Act 1991
- Classification (Publications, Films and Computer Games) (Enforcement) Act 1995
- Domestic Animals Act 1994
- Drugs, Poisons and Controlled Substances Act 1981
- Dangerous Goods Act 1985
- Fisheries Act 1995
- Forests Act 1958
- Gaming Regulation Act 2003
- National Parks Act 1975
- Prevention of Cruelty to Animals Act 1986
- Racing Act 1958
- Wildlife Act 1975
These offenses include:
- Any indictable offense against Victorian law.
- Schedule 2 offenses, which are typically more serious.
- An offense under section 123 of the Confiscation Act 1997 (possession of property suspected to be proceeds of crime).
- An offense under section 195 of the Crimes Act 1958 (dealing with property suspected of being proceeds of crime).
Schedule 2 Offenses:
Schedule 2 offenses pertain to more serious crimes, including:
- Drugs, Poisons and Controlled Substances Act 1981
- Crimes Act 1958
- Sex Work Act 1994
- Casino Control Act 1991
- Confiscation Act 1997
- Racing and Gambling Act (Amendment) Act 2004
- Fisheries Act 1995
- Conveyancers Act 2006
- Estate Agents Act 1980
- Firearms Act 1996
Additionally, they include common law offenses like conspiracy to defraud, misconduct in public office, and bribery of a public official.
Asset Confiscation Prosecution Process:
Asset confiscation is managed by three key agencies:
- Victoria Police: Responsible for investigating crimes and identifying assets for confiscation through the Criminal Proceeds Squad.
- Office of Public Prosecutions (OPP): Prosecutes indictable offenses and manages restraining, exclusion, and forfeiture applications through the Proceeds of Crime Directorate.
- Asset Confiscation Operations Unit (ACO): Monitors the confiscation scheme and manages the wealth flowing back to the government via trust funds.
Unexplained Wealth Orders:
Unexplained wealth provisions in the CA require individuals suspected of serious criminal activity to justify the lawful origin of their wealth.
Key elements include:
- An unexplained wealth restraining order is issued if the court has reasonable grounds to suspect that:
- The person has engaged in serious criminal activity.
- The person has an interest in the property being restrained.
- For property located outside Victoria, the serious criminal activity occurred in Victoria.
- The total value of the property is $50,000 or more (section 40I(1)).
The court may make a restraining order if it suspects the property was not lawfully acquired (section 40I(2)).
If no successful exclusion application is made, the property subject to the restraining order is forfeited to the Minister six months after the order’s issuance (section 40ZA(1)).
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Appeal Against Forfeiture Decisions:
Yes, it is possible to appeal against a forfeiture order or a refusal to grant an exclusion order under the CA (section 142). It is crucial to respond promptly to notifications from the Crown. Ignoring such notifications can result in forfeiture.
At MK Law, we have a track record of successfully protecting property from seizure, emphasising the importance of a well-prepared response. If you are facing an asset restraining order or confiscation application, contact our criminal law firm urgently on 1800 130 120.
Our asset confiscation lawyers are ready to assist you from our offices across Melbourne, ensuring you receive the best legal representation during this critical time.
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- 2/212 Barkly Street, St Kilda Victoria, 3182 Australia
- 1800 130 120
- marcus@mklawfirm.com.au