Proceeds Of Crime (Vic)
In Victoria, the Confiscation Act 1997 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 an order can be made, and property can be confiscated even when a suspect has not been identified.
The main aims of the laws are to deprive people of financial gain associated with crime, deter crime, disrupt criminal activity and undermine its profitability.
Police or the Office of Public Prosecutions can apply to a court for a range of orders under the Act to deal with proceeds of crime.
A restraining order stops a person from dealing with property suspected of being derived from crime, so that property can be forfeited or used to satisfy an order for restitution or compensation. An order can be sought if a person has been charged, or will be charged in the next 48 hours, with a serious offence such as forgery, illegal fishing, unauthorised gambling or animal cruelty.
Civil forfeiture restraining order
A civil forfeiture restraining order directs that directs that specified property must not be disposed of or otherwise dealt with by anyone except in the way specified in the order. Control of specified property can be taken over by a trustee or the Department of Justice and Community Safety. An application must be supported by an affidavit from a police officer that states that the officer believes the property is tainted property and why. This order is made to ensure property will be available to satisfy a civil forfeiture order.
Unexplained wealth restraining order
An unexplained wealth order directs that specified property must not be disposed of or otherwise dealt with by anyone except in the way specified in the order. Control of specified property can be taken over by a trustee or the Department of Justice and Community Safety. An order can be sought when police reasonably believe a person has engaged in serious crime, the person has an interest in the property, and the total value of the property is $50,000 or more. It can also be sought when police believe the property was not lawfully acquired and the property is in Victoria, or the person who acquired the property usually lives in Victoria. An application must be supported by an affidavit from a police officer. This order is made to ensure property will be available to satisfy an unexplained wealth forfeiture order.
A freezing order, sometimes known as a Mareva order, is used to prevent a person disposing of, hiding or diminishing assets. In Victoria, police can apply to the Magistrates Court for a freezing order that a financial institution must not allow a person to withdraw money from a specified account except in the way stated in the order. An order can be sought when police reasonably believe a person has committed, or is about to commit, a serious offence, and has benefitted, or will benefit, from it, or if an account contains money which is tainted property (property used in or derived from crime). A freezing order ends after 3 days or when a civil forfeiture restraining order is made in respect of the money in the account.
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 Victorian act. For instance, under the commonwealth act, a freezing order can be made 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.