This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Asset Forfeiture
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 wide powers to seize and confiscate, including powers over property that is in the control of people unassociated with any criminal offence.
The Confiscation of Criminal Assets Act 2003 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 aims to:
- deprive a person of all material advantage, property or unexplained wealth derived from criminal activity;
- enable the effective tracing and seizure by law enforcement authorities of property and all material advantage related to crime.
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 using the civil standard, which is “the balance of probabilities”, and not on the criminal standard, which is “beyond reasonable doubt”.
What Powers Does the Court Have?
A court can 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 can make an order (a conviction forfeiture order) for the forfeiture of tainted property in relation to an offence.
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. If a court is satisfied on the balance of probabilities that a person has committed a serious offence, it can make a civil forfeiture order.
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?
Section 10 of the Act defines tainted property as:
- property that was used, or was intended to be used, to commit an offence; or
- property that was derived from the commission of the offence; or
- property that was derived via the two methods above; and including money held in an account with a financial institution that represents the value of the property.
The section provides examples of tainted property, including a car used as a getaway car for an armed robbery, and a house bought with money stolen during an armed robbery.
Such property found in the possession of an offender is taken to be related to crime and it is the offender’s responsibility to show otherwise.
Restraining Orders
Penalties
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.
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.
Time Allowed
An application for a restraining order can be made up to 6 years after the offence was committed. However, a restraining order can end when:
- another order under the Act is made;
- the property is forfeited under the Act;
- the property is disposed of by the public trustee to satisfy a penalty order.
Revocation
A person with an interest in restrained property can apply to the court that made the restraining order for revocation of the order if the Director of Public Prosecutions (DPP) did not give the person notice of the order. If the order relates to property that has evidentiary value in a criminal proceeding, the court must not revoke the order.
The owner of restrained property can 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 or varying the restraining order unless the DPP has been provided with security or an undertaking for the property.
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 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.
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 it was acquired lawfully; 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; and
- the property does not have evidentiary value in any criminal proceeding.
For advice or representation in any legal matter, please contact Armstrong Legal.