Police Powers Of Confiscation
In the Australian Capital Territory, 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 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);
- A transaction (other than in relation to an account) conducted, or proposed to be conducted, by or with the institution.
It is an offence to contravene an inquiry notice, to give false or misleading information, 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 monitoring order requires a financial institution to provide information about transactions by a person.
No notice is required when applying for a monitoring order, and the application can be heard in closed court, without the alleged offender or public present. The application can be made only if police have reasonable grounds for suspecting a person:
- 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 5 years or longer.
Contravening a monitoring order is punishable upon conviction by a fine of up to 200 penalty units and/or two years’ imprisonment.
A transaction-suspension order requires a financial institution, on becoming aware of a transaction through a stated account, to:
- immediately tell a police officer about the transaction; and
- delay the processing of the transaction for 48 hours.
The application can be made only if the police officer has reasonable grounds for suspecting that a person:
- has committed, or is about to commit, a money laundering offence;
- was involved in, or is about to be involved in, a money laundering offence;
- has derived, or is about to derive, property or a benefit from a money laundering offence; and
- operates, or has effective control of, the account.
A transaction-suspension order cannot be made in relation to a safe-deposit box.
No notice is required when applying for a transaction-suspension order, and the application can be heard in closed court, without the alleged offender or public present.
Production Orders for Property-Tracking Documents
A production order requires a person to provide any property-tracking documents that relate to the person or property (or both) stated in the order.
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); or
- benefits derived by a person from an relevant offence; or
- evidence in relation to the above; or
- identifying or locating a document for the transfer of property; or
- understanding a document in relation to the above.
No notice is required when applying for an order, and the application can be heard in closed court, without the alleged offender or public present. On application by police, a court can declare the order is a non-disclosable production order, meaning disclosure of the existence or operation of the order is prohibited.
Examination Orders and Notices
An examination notice is a notice by an authorised investigator requiring a person to provide any information or documents (or both) the person has in relation to the investigation. An application for the order can be made only if the authorised investigator has reasonable grounds for suspecting the person has information or documents, including property-tracking documents.
“Investigation” means an investigation of:
- a person’s property or dealings with property;
- benefits derived by the person, or an associate, from a relevant offence;
- the financial affairs of the person or an associate; or
- whether an application could be made for an order or search warrant;
- whether a proceeding could be begun for an offence against the Act, a corresponding law or for a money-laundering offence.
To grant an order, the court must be satisfied that there are reasonable grounds for the investigator’s suspicions.
Under an examination notice a person can be examined on oath or affirmation by the investigator. The investigator can require a person to answer a question. Lawyers are allowed to accompany their clients at the examination.
Non-Compliance at Examination
A person who obstructs, hinders, intimidates or resists an investigator 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 they:
- do not swear an oath or make an affirmation;
- fail to answer a question;
- fail to produce a document; or
- leave the examination before being excused by the investigator.
The maximum penalty is a fine of up to 200 penalty units and/or imprisonment for two years.
For advice or representation on any legal matter, please contact Armstrong Legal.