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Asset Forfeiture

Asset forfeiture is the confiscation of assets from a person who is suspected of involvement in criminal activity. There are certain situations where a person can be required to forfeit their assets to law enforcement agencies by an Asset Forfeiture Order.

What Is An Asset Forfeiture Order?

An Asset Forfeiture Order can be issued by the District Court or the Supreme Court. Asset Forfeiture Orders are applied for by the Commonwealth Director of Public Prosecutions (CDPP) or the Australian Federal Police (AFP).

The CDPP or the AFP may apply for an Asset Forfeiture Order if a person is convicted of a serious offence. Under Section 18.1 of the Confiscation of Proceeds of Crimes Act 1989 (NSW) the assets can be seized if the court is satisfied that the property is related to the offence, for example, a car bought with the money from a drug deal.

When Can A Forfeiture Order Be Issued?

The court may issue an Assets Forfeiture Order in these scenarios:

  1. After a person has been convicted of a serious offence. Section 338 of the Proceeds of Crime Act 2002 defines a serious offence as an indictable offence that involves narcotics; is related to money laundering; or causes a benefit or loss of $10,000 and has a maximum penalty of at least three years.
  2. When a person has not been convicted of a crime, for example when the government has suspicions about the origins of the person’s assets.
  3. When a person is being investigated by the police and no charge has been laid but it is expected one will be laid within 48 hours.

Other Orders

Law enforcement agencies can make various orders related to the forfeiture of assets. The type of order that will be sought will depend on whether or not the person has been charged with an offence and whether or not that charge relates to an NSW or Commonwealth offence.

Freezing Orders

A freezing order prevents the party hiding or disposing of any assets. Authorities can impose a freezing order if they have reason to believe that a person may remove assets from the jurisdiction or hide them. A freezing order can be obtained before commencing court proceedings. However the applicant will need to prove that the proceedings will begin shortly and that they are likely to succeed. They must also show that the freezing order is essential for the pending proceedings. It is much easier to obtain a freezing order after the court has finalised a matter because the court will not be as concerned about the order’s impact on the ability of other parties to use or dispose of the property subject to a freezing order.

Restraining Orders

A restraining order can only be imposed by a court in limited circumstances. These include:

  1. Where a person has been convicted or charged with a serious indictable offence;
  2. Where a person is under suspicion of committing a serious indictable offence;
  3. Where it is suspected that the property is tainted property and originated from the proceeds of crime.

A restraining order prevents a person getting rid of property. For example, if a person bought a boat and police suspect that the boat was bought with the proceeds of crime then a restraining order will stop the offender from selling or otherwise disposing of the boat.

The District Court or Supreme Court can issue a restraining order even before a person has been convicted of committing an offence.

Pecuniary Penalty Order

A pecuniary penalty order forces an offender to pay a financial penalty for the benefits obtained from criminal activity. A pecuniary penalty order application can be made at the same time as an asset forfeiture order. An application for a pecuniary penalty order can be made after a person has been convicted of a serious offence under Section 24 of the Confiscation of Proceeds of Crime Act.

Unexplained Wealth Orders

In some circumstances, the police may apply to the Supreme Court for an unexplained wealth order. This is an order to reclaim the person’s wealth when they have been unable to show that they obtained their wealth legitimately. It will only be issued if the Supreme Court is satisfied that there are reasonable grounds to suspect:

  • that the person was involved in serious criminal activity; or
  • that the person obtained property directly or indirectly from criminal activity; or
  • that the person’s wealth was obtained unlawfully.

What Government Agencies Can The Property Be Forfeited To?

Assets can be forfeited to agencies including the Director of Public Prosecutions (state and federal) and police (state and federal).

Challenging an Order

If you are subject to one of these orders it is important to consult a specialist lawyer who can apply to the Supreme Court on your behalf to exclude property from a forfeiture order.

If you need legal advice in any legal matter please contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

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...

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