Section 47 Forfeiture Orders – conduct constituting serious offences (flowing on from section 18 restraining orders)

After a section 18 restraining order has been in place for 6 months, the AFP can apply for a forfeiture order. A forfeiture order as the name suggests, forfeits the property to the Commonwealth.

A court must make an order that property specified in the order is forfeited to the Commonwealth if:

• The application is heard before a court with proceeds jurisdiction;
• The AFP (also being the responsible authority for the restraining order that covers the property) applies for the forfeiture order pursuant to section 47 POCA;
  • Note: Unless an application for exclusion from forfeiture is made pursuant to section 74 POCA, the court would not be required for the purposes of making a forfeiture order to be satisfied about the nature of the property being forfeited. The forfeiture order may apply to any property of the suspect or another person which could have been restrained under section 18.[1]
• The restraining order has been in force for at least 6 months;[2]
• The court is satisfied that a person whose conduct or suspected conduct formed the basis of the restraining order engaged in conduct constituting one or more serious offences.[3]
  • Note:
    • The court must find on the balance of probabilities[4] that the person engaged in conduct constituting a serious offence. The serious offence need not be the same offence on which the restraining order was based, and a particular offence need not be proved. It is sufficient for the court to be satisfied that any serious offence has been committed.[5]
    • The raising of a doubt as to whether a person engaged in conduct constituting a serious offence is not of itself sufficient to avoid a finding by the court that the person did engage in conduct constituting a serious offence.[6]

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[1] Proceeds of Crime Bill 2002 Revised Explanatory Memorandum.

[2] The 6 months requirement can be waived if the order is made by consent, see s 316 POCA.

[3] Serious Offence is defined in s 338 Proceeds of Crime Act 2002 (Cth).

[4] Noting Briginshaw.

[5] Proceeds of Crime Bill 2002 Revised Explanatory Memorandum.

[6] S 47(3) Proceeds of Crime Act 2002 (Cth).

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