Section 92 Automatic Forfeiture – Person convicted of a serious offence (flowing on from section 17 or 18 restraining orders)

If a person is convicted of a serious offence,[1] and the property is covered by a restraining order under section 17 or 18 against the person that relates to the offence, the property is forfeited to the Commonwealth once 6 months has passed from the period starting on the conviction day.[2]

It is incumbent upon the AFP to take reasonable steps to notify any person whom the AFP reasonably believes may have an interest in the property.[3] Failure of the AFP to take reasonable steps to notify any person whom the AFP reasonably believes may have an interest in the property does not appear to stop automatic forfeiture under section 92 POCA, which occurs as an operation of law.[4]

Declaration that property has been forfeited under Part 2-3 POCA (s 92 automatic forfeiture)

The court that made the section 17 or 18 restraining order referred to in section 92(1)(b) POCA, may declare that particular property has been forfeited under Part 2-3 POCA (being a section 92 automatic forfeiture) if the AFP applies for the declaration and the court is satisfied that the property has forfeited pursuant to Part 2-3 POCA (being a section 92 automatic forfeiture).

This is often used as an administrative tool to conclusively allow AFSA to deal with the property as forfeited property.

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[1] As defined in section 338 Proceeds of Crime Act 2002 (Cth).

[2] Defined in section 333 Proceeds of Crime Act 2002 (Cth), from section 338 Proceeds of Crime Act 2002 (Cth).

[3] S 92A Proceeds of Crime Act 2002 (Cth).

[4] It may just have an impact if a person is applying to recover forfeited property pursuant to section 102 Proceeds of Crime Act 2002 (Cth). See section 104(2) Proceeds of Crime Act 2002 (Cth).

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