Brief History of Asset Confiscation Law in Australia

The genesis of asset confiscation law most probably lies in the common law concepts of attainder and corruption of blood.[1] Attainder was believed to have emerged in 1308,[2] and is a concept under which the civil rights and capacities of the offender (including the right to hold, inherit or dispose of property) were deemed to have been automatically extinguished on sentence of death or outlawry in the case of those convicted of treason or felony.[3] No additional or separate judicial order of forfeiture was required in such cases.[4] This form of forfeiture derived from the feudal notion that all property or offices were held by grace of their superior Lord and were subject to surrender for breach of fealty.[5]

At the Commonwealth level, the Customs Act 1901 (Cth)[6] and the Fisheries Management Act 1991 (Cth)[7] provide for in rem forfeiture. The predominant piece of legislation though is the Proceeds of Crime Act 2002 (Cth) (POCA). The forerunner to this is the Proceeds of Crime Act 1987 (Cth).[8] In NSW, the Criminal Assets Recovery Act 1990 (NSW)[9] provides laws for civil forfeiture. In Victoria, the Confiscation Act 1997 (VIC) handles civil forfeiture. In Western Australia, Criminal Property Confiscation Act 2000 (WA). In Queensland, the Criminal Proceeds Confiscation Act 2002 (Qld). In South Australia, the Criminal Assets Confiscation Act 2005 (SA). In the Northern Territory, the Criminal Property Forfeiture Act 2002 (NT). In Tasmania, the Crime (Confiscation of Profits) Act 1993 (Tas).

An important distinction to be made at the outset is that asset confiscation that occurs pursuant to the Proceeds of Crime Act 2002 (Cth) is civil in nature and is not dependent upon a criminal conviction occurring. Being civil in nature, it is adjudged on the balance of probabilities.[10]

Applications under the act must be made by the Director of Public Prosecutions (CDPP / DPP), or the Commissioner of the Australian Federal Police (AFP). Initially the DPP had carriage of making restraining and forfeiture orders within POCA, but with the advent of the Criminal Assets Confiscation Taskforce in January 2011 (comprising the Australian Criminal Intelligence Commission (ACIC) (known then as the Australian Crime Commission (ACC)), the Australian Taxation Office (ATO), and the Commonwealth Director of Public Prosecutions (CDPP)), the POCA was amended to allow the Commissioner of the AFP to make applications under POCA.

Currently the CDPP maintain a very limited role in POCA matters.[11]

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[1] Director of Public Prosecutions v Toro-Martinez (1993) 33 NSWLR 82, 85-86.

[2] The Politics of Proceeds of Crime Legislation, UNSW Law Journal.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] ss 243B and 243E.

[7] S 106A.

[8] Still a current statute.

[9] Originally introduced as the Drug Trafficking (Civil Proceedings) Act 1990 (NSW).

[10] S 317 Proceeds of Crime Act 2002 (Cth).

[11] Limited to only seeking forfeiture orders pursuant to s 48 POCA where no restraining order has been sought at the time the application is made; and seeking PPO’s pursuant to s 116 relating to a person’s conviction where no restraining order has been sought at the time the application is made.

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