Exclusion from forfeiture

If a forfeiture order was made under section 47 or 49 POCA, a court must make an order excluding a specified interest in property from forfeiture if the court is satisfied that the applicant’s interest in the property is neither of the following:

• proceeds of unlawful activity;[1]
• an instrument of any serious offence (if an offence on which the order was (or would be) based is a serious offence).[2]

If a forfeiture order was (or the forfeiture order applied for would be) made under section 48 POCA, a court must make an order excluding a specified interest in property from forfeiture if the court is satisfied that the applicant’s interest in the property is neither proceeds nor an instrument of any of the offences to which the forfeiture order or forfeiture application relates.[3]

To satisfy all the required elements of exclusion from forfeiture (as listed in section 73 POCA), in addition to the above-mentioned elements:

• a person applies for the exclusion order;[4] and
• the forfeiture order, or the forfeiture application specifies property in which the applicant has an interest.[5]

A person who claims an interest in property can apply for exclusion from forfeiture if a forfeiture application has been applied for, but is yet to be made.[6]

A person who claims an interest in property can apply for exclusion from forfeiture after a forfeiture order has been made if they were not notified of the forfeiture application[7] or other special grounds apply.[8]

It is incumbent upon the applicant for exclusion to provide written notice to the AFP or CDPP of both the application and grounds[9] on which the order is sought.[10]

If the AFP[11] or CDPP[12] have had a reasonable opportunity to conduct examinations in relation to the application, then the AFP or CDPP must give the applicant notice of any grounds on which it proposes to contest the application.[13]

Furthermore, it should be noted that an application for an exclusion order cannot be heard until the AFP or CDPP 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.

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[1] S 73(1)(c)(i) Proceeds of Crime Act 2002 (Cth).

[2] S 73(1)(c)(ii) Proceeds of Crime Act 2002 (Cth).

[3] S 73(1)(d) Proceeds of Crime Act 2002 (Cth).

[4] S 73(1)(a) Proceeds of Crime Act 2002 (Cth).

[5] S 73(1)(b) Proceeds of Crime Act 2002 (Cth).

[6] S 74(1) Proceeds of Crime Act 2002 (Cth).

[7] S 74(3) Proceeds of Crime Act 2002 (Cth).

[8] S 74(4) Proceeds of Crime Act 2002 (Cth).

[9] “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]).

[10] S 75(1) Proceeds of Crime Act 2002 (Cth).

[11] For section 47 and 49 forfeiture orders.

[12] For section 48 forfeiture orders.

[14] S 75(3) Proceeds of Crime Act 2002 (Cth).

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