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Proceeds of Crime Compensation Orders (relating to automatic forfeiture pursuant to s 92)

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Compensation for proportion of property not derived or realised from commission of any offence

A court that made a restraining order in section 92(1)(b) POCA must make an order to pay the applicant an amount of compensation[1] if:

  • A person applies for an order under section 94A POCA;
  • The court is satisfied that the applicant has an interest in property covered by the restraining order;
  • A person has been convicted of a serious offence to which the restraining order relates;
  • The court is satisfied that a proportion of the value of the applicant’s interest was not derived or realised, directly or indirectly, from the commission of any offence;
  • The court is satisfied that the applicant’s interest is not an instrument of any offence.

A section 94A compensation order can be made at any time.[2] However, the person may be restricted from applying under this section if they were given notice under section 92A, and did not make an application prior to forfeiture, unless a good reason exists inter alia.[3]

It is incumbent upon the applicant for compensation to provide written notice to the AFP of both the application and grounds[4]

If the AFP has had a reasonable opportunity to conduct examinations in relation to the application, then the AFP must give the applicant notice of any grounds on which it proposes to contest the application.[5]

Furthermore, it should be noted that an application for an exclusion order cannot be heard[6] until the AFP has had a reasonable opportunity to conduct examinations in relation to the application. As examinations compel an examinee to answer questions, it may not be in the applicant’s interest to seek exclusion.


[1] S 94A(2) Proceeds of Crime Act 2002 (Cth).

[2] S 94A(3) Proceeds of Crime Act 2002 (Cth).

[3] See sections 94A(4) and (5) Proceeds of Crime Act 2002 (Cth).

[4] “grounds” cannot simply restate the statutory regime. ‘The applicant should particularise … not merely recite the statutory formation of the test…’ (Commissioner of the Australian Federal Police v Nguyen [2016] NSWSC 883, [8]).

[5] S 94(5) Proceeds of Crime Act 2002 (Cth).

[6] S 94(6) Proceeds of Crime Act 2002 (Cth).


* Information contained in this article is of a general nature only and should not be relied upon as concise legal advice.
Please contact us for legal advice tailored to your situation. *


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About Brian Walker

B.Acc., GradDipLegPrac, Juris Dr Barrister & Accountant. Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

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