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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Proceeds of Crime (Qld)


In Queensland, the Criminal Proceeds Confiscation Act 2002 allows a court to order that property suspected of being the proceeds of crime be restrained or confiscated. Proceeds of crime are cash, property, other assets or benefits gained through criminal activity. No criminal conviction is needed before order can be made, and property can be confiscated even when a suspect has not been identified.

The main aim of the laws is to remove the financial gain and increase the financial loss associated with crime. The laws also act as a deterrent to crime as well as help police trace property acquired from illegal activity. They apply to illegal activity or a “serious crime related activity”, which is an indictable offence that carries a penalty of imprisonment for 5 years.

Orders

A range of orders can be made under the Act to deal with proceeds of crime.

Restraining order

Police can apply to the Supreme Court for a restraining order to stop a person from dealing with property that police suspect has been derived from serious crime related activity. An order can be made only if the person lives in Queensland or the property is in Queensland. An affidavit must be supplied with the application, stating the police officer suspects the person has engaged in serious crime related activity, and has derived proceeds from it, and the reason for the suspicion. The order is in force for 28 days.

Forfeiture order

Police can apply to the Supreme Court for a forfeiture order that forfeits the restrained property to the state. The prosecution must prove the person has engaged in serious crime in the past 6 years. This order allows property the forfeited property to be sold by the Public Trustee.

Proceeds assessment order

Police can apply to the Supreme Court for a proceeds assessment order that requires a person to pay to the state the value of the proceeds derived from their illegal activity in the past 6 years. The court can deduct from the value of the proceeds any property forfeited under a forfeiture order.

Unexplained wealth order

Police can apply to the Supreme Court for an unexplained wealth order that requires a person to pay to the state an amount assessed by the court to be the value of the person’s unexplained wealth. The court must be satisfied there is a reasonable suspicion the person engaged in serious crime at some time, and that the person’s current or previous wealth was acquired unlawfully. Current or previous wealth is the total value of all the person’s property, including property that the person has at any time disposed of, and all benefits provided to and derived by the person.

Serious Drug Offender Confiscation orders

This order allows property that belongs to a person convicted of a qualifying drug offence to be forfeited, even if the property was legally acquired. A restraining order over all of a person’s property can be made by the Supreme Court if the person is charged with a qualifying drug offence. The order is in force for 12 months. If the person is convicted of the offence and a Serious Drug Offender Confiscation order is made, the property is forfeited to the state and can be sold by the Public Trustee.

Freezing order

A freezing order, sometimes known as a Mareva order, is used to prevent a person disposing of, hiding or diminishing assets. This power is granted under the Uniform Civil Procedure Rules 1999. The purpose of a freezing order is to prevent the frustration of the court’s process by removing the risk the court’s judgment will be unsatisfied.

Commonwealth laws

For crimes against commonwealth law, the Proceeds of Crime Act 2002 applies. In some situations it can be used to confiscate proceeds of crime against state law, if the proceeds have been used in a way that contravenes commonwealth law.

The commonwealth Act grants powers to make orders similar to that which can be made under the Queensland Act. For instance, the commonwealth Act refers to a freezing order but  specifically in relation to a bank account. The court can make an order if it is satisfied there are grounds to suspect the account contains proceeds of crime and there is a risk money will be withdrawn from it unless an order is made. A freezing order must last no longer than 3 days.

The commonwealth Act, however, allows for the making of a literary proceeds order. Literary proceeds are “any benefit a person derives from the commercial exploitation” of their notoriety resulting from them committing an indictable offence in Australia or abroad. The exploitation may be any means, including publishing material in written or electronic form, use of audio-visual media, or any live entertainment or interview.

For advice or representation in any legal matter, please contact Armstrong Legal.

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