Miscellaneous Provisions

Proceedings for an application for a restraining order, forfeiture order, PPO, literary proceeds order or an unexplained wealth order are civil, not criminal in nature.[1] The rules of construction that apply only to criminal law do not apply to the POCA.[2] The rules of evidence that apply only in criminal proceedings do not apply to the POCA.[3]

A bypassing of the statutory requirements in relation to freezing orders, restraining orders, forfeiture orders, PPO’s, literary proceeds orders and unexplained wealth orders can be made if consent is given by the applicant in the proceedings and everyone whom the court has reason to believe would be affected by the order.[4] If the order is a forfeiture order under section 47 or 49, the 6 month time period is not required.[5]

The applicant in any proceedings under the POCA bears the onus of proving the matters necessary to establish the grounds for making the order applied for.[6] This means the onus rests with:

Proceedings	Onus
S 15B Freezing Orders	AFP
S 17 Application for restraint	AFP
S 18 Application for restraint	AFP
S 19 Application for restraint	AFP
S 20 Application for restraint	AFP
S 20A Application for restraint	AFP
S 30 Application for exclusion	Applicant
S 31 Application for exclusion	Applicant
S 39 Ancillary Orders	AFP / Applicant
S 39 Application to revoke ancillary order	AFP / Applicant
S 42 Application to revoke restraining order	Applicant
S 47 Forfeiture order	AFP
S 48 Forfeiture order	CDPP[7]
S 49 Forfeiture order	AFP
S 72 Hardship application	Applicant
S 74 Exclusion application	Applicant
S 78 Compensation application	Applicant
S 93 Extension from automatic forfeiture	Applicant
S 94 Exclusion from automatic forfeiture	Applicant
S 94A Compensation application	Applicant
S 95 Declaration of forfeiture	AFP
S 103 Buyback application	Applicant
S 116 PPO	AFP
S 152 Literary proceeds order	AFP
S 179B Preliminary Unexplained Wealth Order	AFP
S 179C Application to revoke Preliminary Unexplained Wealth Order	AFP
S 179E Application for Unexplained Wealth Order	AFP
S 180 Examination Order	AFP
S 202 Production Order	AFP
S 219 Monitoring Order	AFP
S 225 Search Warrant	AFP

 

As POCA proceedings are civil in nature, questions of fact are decided on the balance of probabilities.[8]

POCA proceedings must not be stayed on the basis that criminal proceedings have been started or are on foot. Section 319 POCA was expanded following the decision in Commissioner of the Australian Federal Police v Zhao [2015] HCA 5. It is the intention that concurrent civil and criminal proceedings are possible, and require specific consideration of the individual circumstances and associated risks of prejudice.[9] To prevent prejudice or for any other reason, it’s possible to close the court for proceedings under POCA.[10]

Cooperation in relation to POCA proceedings can be taken into account in sentencing in relation to conviction of an indictable offence.[11]

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[1] S 315(1) Proceeds of Crime Act 2002 (Cth).

[2] S 315(2)(a) Proceeds of Crime Act 2002 (Cth).

[3] S 315(2)(b) Proceeds of Crime Act 2002 (Cth).

[4] S 316 Proceeds of Crime Act 2002 (Cth).

[5] As listed in section 47(1)(b) or 49(1)(b) Proceeds of Crime Act 2002 (Cth) respectively.

[6] S 317(1) Proceeds of Crime Act 2002 (Cth).

[7] CDPP, Proceeds of Crime Actions < https://www.cdpp.gov.au/sites/g/…/IASA_Proceeds%20of%20Crime%20Actions.docx>.

[8] S 317(2) Proceeds of Crime Act 2002 (Cth).

[9] Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015 Explanatory Memorandum.

[10] S 319A Proceeds of Crime Act 2002 (Cth).

[11] S 320(a) Proceeds of Crime Act 2002 (Cth).

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