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Proceeds of Crime – Excluding Property From Forfeiture (Exclusion Orders)

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Excluding property from forfeiture under Part 2-3 POCA (section 94 POCA) (referring to automatic forfeiture under section 92 POCA)

Before Forfeiture

A court that made a restraining order in section 92(1)(b) POCA must make an order excluding particular property from forfeiture if:

  • A person applies for an order under section 94 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 the applicant’s interest in the property is neither proceeds of unlawful activity, nor an instrument of unlawful activity.
  • The court is satisfied that the applicant’s interest in the property was lawfully acquired.

A section 94 exclusion order cannot be made in relation to property if the property has already been forfeited under Part 2-3 POCA (meaning a section 92 automatic forfeiture).[1]

It is incumbent upon the applicant for exclusion to provide written notice to the AFP or CDPP of both the application and grounds[2]

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.[3]

Furthermore, it should be noted that an application for an exclusion order cannot be heard[4] 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.

After Forfeiture

A person can apply for section 102 POCA orders to transfer an interest in forfeited property to the applicant if the applicant was not previously notified of the automatic section 92 forfeiture (via a section 92A notice) or there are other special grounds for granting leave to apply[5]

If:

  • A person who claims an interest in the property applies for an order under section 102 POCA; and
  • The court is satisfied:
    • The applicant had an interest in the property before the forfeiture of the property;
    • The applicant’s interest in the property is neither proceeds of unlawful activity nor an instrument of unlawful activity;
    • The applicant’s interest in the property was lawfully acquired

then the court must make an order to transfer the interest to the applicant, or pay the applicant an amount equal to their interest, dependent upon whether the interest is still vested in the Commonwealth.

It is incumbent upon the applicant for exclusion to provide written notice to the AFP or CDPP of both the application and grounds[6]

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.[7]

Furthermore, it should be noted that an application for an exclusion order cannot be heard[8] 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 94(2) Proceeds of Crime Act 2002 (Cth).

[2] “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]).

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

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

[5] S 104(2)-(3) Proceeds of Crime Act 2002 (Cth).

[6] “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]).

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

[8] 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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