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Proceeds of Crime AFP Restraining Order

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Proceeds of Crime

A Guide For Solicitors

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by Brian Walker, Barrister

Clarence Chambers

Level 21, 133 Castlereagh Street

SYDNEY NSW 2000

(02) 9188 5251

[email protected]

an unedited version – December 2020

Information contained in this article is of a general nature only and should not be relied upon as concise legal advice.

Contents

History 4

The Relevant Authorities 4

Preliminary Investigative Methodologies 5

Examinations 5

Production Orders 6

Notices to financial institutions 7

Monitoring orders 7

POCA Search Warrants 8

Disclosure of POCA obtained information 10

Freezing Orders 11

Restraining Orders 12

Required Elements Common to All Restraining Orders 12

A court with “proceeds jurisdiction” 12

A “proceeds of crime authority” applies for the order 13

The threshold of “reasonable suspicion” 13

Restraining Orders relating to people convicted of or charged with indictable offences – s 17 14

Restraining Orders relating to people suspected of committing serious offences – s 18 15

Restraining Orders relating to property (in rem) suspected of being proceeds of indictable offences – s 19 16

Restraining Orders relating to literary proceeds from indictable offences – s 20 17

Restraining Orders relating to unexplained wealth – s 20A 17

Restraining Orders Generally 19

Relief from Restraining Orders 19

Allowance for Expenses 19

Excluding Property from Restraining Orders (ss 17, 18, or 19) 20

Revoking a Restraining Order 21

Custody and Control 21

Ancillary Orders 22

Revoking an Ancillary Order 23

Forfeiture Orders 23

Things relevant to all forfeiture orders 23

Section 47 Forfeiture Orders – conduct constituting serious offences (flowing on from section 18 restraining orders) 24

Section 48 Forfeiture Orders – Convictions for indictable offences 25

Section 49 Forfeiture Orders – Property suspected of being proceeds of indictable offences etc. (flowing on from section 19 (in rem) restraining orders). 26

Section 92 Automatic Forfeiture – Person convicted of a serious offence (flowing on from section 17 or 18 restraining orders) 26

Excluding property from forfeiture under Part 2-3 POCA (section 94 POCA) (referring to automatic forfeiture under section 92 POCA) 27

Before Forfeiture 27

After Forfeiture 28

Compensation for proportion of property not derived or realised from commission of any offence 29

Declaration that property has been forfeited under Part 2-3 POCA (s 92 automatic forfeiture) 30

General principles applying to forfeiture orders 30

Acquittal or quashing of conviction in relation to section 47, 48, or 49 forfeiture order 30

Quashing of conviction in relation to section 92 forfeiture order 31

Buying Back Forfeited Property from a sections 47, 48, or 49 order 32

Buying Back Forfeited Property from a section 92 automatic forfeiture order 33

Relieving dependants of hardship (section 72 POCA) 33

Exclusion from forfeiture 34

Compensation Orders 35

Pecuniary Penalty Orders (PPO) 36

Determining Penalty Amount of PPO’s 37

Value of the Benefits Derived (aka. Subdivision B) 37

Value of Benefits Derived – Non Serious Offences 38

Value of Benefits Derived – Serious Offences 38

Reducing PPO’s 39

Forfeited (under a Commonwealth law) or property proposed to be forfeited (under POCA) 39

Taking account of tax paid 39

Fines payable 39

Increasing Penalty Amount 39

General Provisions relating to PPO’s 40

Automatic charge on property 41

Discharge of PPO upon quashing of conviction 41

Literary Proceeds Orders 42

Quantum of literary proceeds order 43

Automatic charge on property 45

Discharge of Literary Proceeds Order upon quashing of conviction 45

Unexplained Wealth Orders 46

Restraining Order – unexplained wealth 46

Preliminary Unexplained Wealth Order 47

Revocation of Preliminary Unexplained Wealth Order 47

Unexplained Wealth Order 48

Determining Unexplained Wealth Amount 48

Reducing Unexplained Wealth Amount 49

Hardship for Dependants 49

General Provisions Relating to Unexplained Wealth Orders 49

Miscellaneous Provisions 50

Glossary 53

Effective Control 53

Indictable Offence 53

Instrument 53

Lawfully acquired 54

Proceeds 54

Serious Offence 55

State Offence with a Federal Aspect 55

Total wealth 56

Wealth 56

History

The genesis of asset confiscation law most probably lies in the common law concepts of attainder and corruption of blood.[1] Attainder was believed to have emerged in 1308,[2] and is a concept under which the civil rights and capacities of the offender (including the right to hold, inherit or dispose of property) were deemed to have been automatically extinguished on sentence of death or outlawry in the case of those convicted of treason or felony.[3] No additional or separate judicial order of forfeiture was required in such cases.[4] This form of forfeiture derived from the feudal notion that all property or offices were held by grace of their superior Lord and were subject to surrender for breach of fealty.[5]

At the Commonwealth level, the Customs Act 1901 (Cth)[6] and the Fisheries Management Act 1991 (Cth)[7] provide for in rem forfeiture. The predominant piece of legislation though is the Proceeds of Crime Act 2002 (Cth) (POCA). The forerunner to this is the Proceeds of Crime Act 1987 (Cth).[8] In NSW, the Criminal Assets Recovery Act 1990 (NSW)[9] provides laws for civil forfeiture. In Victoria, the Confiscation Act 1997 (VIC) handles civil forfeiture. In Western Australia, Criminal Property Confiscation Act 2000 (WA). In Queensland, the Criminal Proceeds Confiscation Act 2002 (Qld). In South Australia, the Criminal Assets Confiscation Act 2005 (SA). In the Northern Territory, the Criminal Property Forfeiture Act 2002 (NT). In Tasmania, the Crime (Confiscation of Profits) Act 1993 (Tas).

An important distinction to be made at the outset is that asset confiscation that occurs pursuant to the Proceeds of Crime Act 2002 (Cth) is civil in nature and is not dependent upon a criminal conviction occurring. Being civil in nature, it is adjudged on the balance of probabilities.[10]

The Relevant Authorities

Applications under the act must be made by the Director of Public Prosecutions (CDPP / DPP), or the Commissioner of the Australian Federal Police (AFP). Initially the DPP had carriage of making restraining and forfeiture orders within POCA, but with the advent of the Criminal Assets Confiscation Taskforce in January 2011 (comprising the Australian Criminal Intelligence Commission (ACIC) (known then as the Australian Crime Commission (ACC)), the Australian Taxation Office (ATO), and the Commonwealth Director of Public Prosecutions (CDPP)), the POCA was amended to allow the Commissioner of the AFP to make applications under POCA.

Currently the CDPP maintain a very limited role in POCA matters.[11]

Preliminary Investigative Methodologies

Examinations

Compulsory examinations are one of the most powerful tools that come out of the POCA. They are broadly analogous to coercive examination powers contained in state confiscation legislation (which is run by the NSW Crime Commission in NSW), and coercive examination powers in ICAC inquiries.

Often Examinations are sought in the initiating Summons but not pressed until a later date. Relevantly if a person seeks exclusion from a restraining order or exclusion from a forfeiture order, these applications cannot be heard until the AFP have had a reasonable opportunity to conduct an examination.[12] As the examination entails a compulsory examination to answer questions concerning a broad ambit[13] with the threat of contempt looming over the examinee’s head, this is an important consideration a person seeking exclusion should consider as the statutory tests for exclusion from restraint and/or forfeiture are very limited in contrast to the low bar test required for restraint (reasonable suspicion).

Relevantly, privilege against self-incrimination does not apply, nor does legal professional privilege.[14]

Failure to attend an examination is an offence punishable by imprisonment.[15] Failure to answer questions approved by the examiner or to produce a required document are punishable by imprisonment.[16] The fact that someone is contractually obliged not to disclose information does not provide a valid reason to not answer a question.[17] Likewise, an obligation under a law of a foreign country not to disclose information does not provide a valid reason to not answer a question.[18]

An answer or document produced in an examination are not admissible in evidence in civil or criminal proceedings against the person who gave the answer or produced the document except in:[19]

  • Criminal proceedings for giving false or misleading information;
  • Proceedings on an application under the POCA;
  • Proceedings ancillary to an application under the POCA;
  • Proceedings for enforcement of a forfeiture order, a PPO, a literary proceeds order, or an unexplained wealth order;
  • In the case of the document – in civil proceedings for or in respect of a right or liability it confers or imposes.

It should be worth noting that the restriction applies to proceedings against the person who gave the answer (in other words the examinee), it does not limit the admissibility of information provided in an examination in relation to other people. Further, it does not limit the derivative uses that may arise from answers given. For example, if an examinee provides information of a crime that took place, this does not then stop the police investigating the alleged crime and obtaining other evidence (not disclosed at the examination) for use in criminal proceedings against the examinee.

It’s quite possible that an applicant for exclusion of property from restraint and/or forfeiture is subjecting themselves to a compulsory examination with very little chance of obtaining exclusion from restraint and/or forfeiture.

Production Orders

A production order is a Magistrate made order under the application of an AFP Officer for documents. The documents requested have a broad ambit,[20] and are predominantly aimed at identifying, locating or quantifying property for POCA proceedings.

The test is that the Magistrate is satisfied by information on oath that the person is reasonably suspected[21] of having possession or control of such documents.[22] A production order can only require the production of documents which are in the possession, or under the control, of a corporation or are used, or intended to be used, in the carrying on of a business.[23]

Common law privileges such as the privilege against self-incrimination and/or legal professional privilege are not excuses to producing the requested documents, as these privileges are expressly abrogated by the POCA.[24]

Notwithstanding the abrogation of these privileges, a direct use immunity applies to produced documents.[25] This means that documents produced pursuant to a section 202 Production Order are not admissible in evidence in criminal proceedings against the person (being the person who produced the document and by doing so incriminated themselves). The only exception to this direct use immunity is offences for producing false or misleading information or documents.[26]

Failure to comply with a production order is an offence punishable by imprisonment.[27]

Notices to financial institutions

A notice to a financial institution is a notice authorised by a senior executive AFP employee (or higher), requiring the financial institution to provide information to an AFP member. The information requested can be broad and can include whether the person holds an account, is a signatory to an account, as well as any transactions.[28]

A notice to a financial institution only has to meet the senior executive AFP employee’s judgment that the employee reasonable believes that the notice is required to determine whether to take any action under POCA or in relation to proceedings under POCA. The notice does not have to be tested by a judicial officer before being issued.

Notices to financial institutions are designed to allow an investigator to determine if a suspect has an interest in bank accounts, which then informs the investigators decision as to whether to take action under the POCA.

Failure to comply with a notice to a financial institution is an offence punishable by imprisonment.[29]

Monitoring orders

A Monitoring Order is a judge made order which is made on the application of the AFP to order a financial institution provide information on transactions conducted on a credit or debit card.

To make the order, the judge must be satisfied that there are reasonable grounds[30] to suspect that the person who holds the account to whom the credit / debit card was issued has committed or is about to commit a serious offence,[31] was involved in the commission, or is about to be involved in the commission, of a serious offence,[32] or has benefited directly or indirectly, or is about to benefit directly or indirectly, from the commission or a serious offence.[33]

An alternate threshold test to make the order, is that the judge is satisfied that there are reasonable grounds[34] for suspecting that the account or card is being used to commit an offence against Part 10.2 of the Criminal Code[35] (which relates to money laundering).

Failure to comply with a monitoring order is an offence punishable by imprisonment.[36]

POCA Search Warrants

POCA Search Warrants are substantially similar to standard Federal level search warrants contained in the Crimes Act 1914 (Cth).[37]

A POCA Search Warrant is a Magistrate issued search warrant, which is issued if the Magistrate is satisfied that there are reasonable grounds[38] for suspecting that there is at the premises, or will be within the next 72 hours, tainted property or evidential material.

Tainted property broadly is proceeds of an indictable offence or an instrument of an indictable offence.[39]

Evidential material broadly means evidence relating to property which has been or could be subject to action under POCA, or evidence relating to benefits derived from the commission of an indictable offence.

A POCA Search Warrant can authorise an AFP Member to:

  • enter a premises or conveyance;[40]
  • search and record fingerprints;[41]
  • take samples of things for forensic purposes;[42]
  • seize the kinds of tainted property and evidential material specified in the warrant, found at the premises;[43]
  • seize evidential material[44] relating to an indictable offence if the AFP Member believes on reasonable grounds that seizure of the things is necessary to prevent their concealment, loss or destruction or their use in committing an offence;[45]
  • If the warrant allows, to conduct an ordinary search or a frisk search of a person at or near the premises if the AFP Member suspects on reasonable grounds that the person has any tainted property or evidential material in their possession.[46]

A POCA Search Warrant can also authorise an AFP Member to seize things that the AFP Member believes on reasonable grounds to be things relevant to unexplained wealth proceedings.[47] This express entitlement of a POCA Search Warrant is not found in the general S 3E Crimes Act 1914 (Cth) search warrants.

Thing[s] relevant to unexplained wealth proceedings[48] is defined as a thing as to which there are reasonable grounds for suspecting that it may be relevant for the purposes of initiating or conducting proceedings under s 20A or Part 2-6 POCA.

As a general section 3E Crimes Act 1914 (Cth) Search Warrant is similar to a POCA Search Warrant and also allows for the seizure of evidential material or tainted property for POCA, there is not much difference or utility in opting for a POCA Search Warrant as opposed to a section 3E Crimes Act 1914 (Cth) Search Warrant. The one exception to this may be where it is envisaged that unexplained wealth proceedings may take place. In this instance, a POCA Search Warrant may provide more utility due to its express reference to a power to seize things relevant to unexplained wealth proceedings.

To date though, as unexplained wealth proceedings are more resource intensive, more ambiguous and relatively new, very few unexplained wealth proceedings have taken place.[49]

Disclosure of POCA obtained information[50]

As POCA information is contained in a coercive manner, there are constraints around when it can be disclosed.

Section 266A POCA applies to information obtained from:

  • Sworn statements,[51] including sworn statements made by the suspect in relation to a restraining order,[52] a sworn statement made by an owner or previous owner of property,[53] or another person providing a sworn statement;[54]
  • POCA Search Warrants;[55]
  • Notices to financial institutions;[56]
  • Monitoring Orders;[57]
  • Production Orders;[58]
  • Examinations;[59]

As the coercive information gathering powers contained within the Proceeds of Crime Act 2002 (Cth) are quite powerful, there is limitations on how the information can be disseminated. There is a table contained in s 266A POCA that controls to which Authority disclosure may be made and for what Purpose the disclosure may be made. A summary of this table is below:

Authority to which disclosure may be made Purpose for which disclosure may be made
AFP or CDPP. Facilitating that authority’s performance of its functions under POCA.
State, Territory, or Commonwealth authority which has the function of investigating or prosecuting offences against a law of the Commonwealth, State or Territory (e.g. police force). Assisting in the prevention, investigation or prosecution of an offence against that law that is punishable on conviction by imprisonment for at least 3 years or for life.
Foreign authority which has the function of investigating or prosecuting offences against a law of that country (e.g. foreign police force). Assisting in the prevention, investigation or prosecution of an offence against that law constituted by conduct that, if it occurred in Australia, would constitute an offence against a law of the Commonwealth, or of a State or Territory, punishable by conviction by imprisonment for at least 3 years or for life.
Authority of a State, or a self-governing Territory, that has a function under a corresponding law of the State or Territory (e.g. State Crime Commission’s and/or State Public Prosecutors (DPP)). Any one or more of the following purposes:

  1. Engaging in proceedings under that corresponding law.
  2. Engaging in proceedings for the forfeiture of things under a law of that State or Territory.
  3. Deciding whether to institute proceedings of a kind referred to in paragraph (a) or (b).
Authority of a foreign country that has one or more of the following functions:

  1. Investigating or prosecuting offences against a law of the country;
  2. Identifying, locating, tracing, investigating or confiscating proceeds of instruments of crime under a law of the country.

(e.g. Foreign equivalent of ACIC, State Crime Commission’s, CDPP, DPP).

Assisting in identification, location, tracing, investigation or confiscation of proceeds or instruments of crime, if the identification, location, tracing, investigation or confiscation could take place under POCA, or under a corresponding law of a State or a self-governing Territory, if the proceeds or instruments related to an offence against a law of the Commonwealth, State or Territory.
ATO. Protecting public revenue.

Information contained in a document produced or made available as the result of a production order, that is subsequently disclosed under s. 266A is not admissible in a criminal proceeding against the person who produced the document, unless it relates to providing false or misleading documents or information (ss 137.1, 137.2 Criminal Code[60]).

An answer or document provided by an examinee, that is subsequently disclosed under s. 266A is not admissible in evidence against that examinee in a civil or criminal proceeding, unless it is for:

  • Criminal proceedings for giving false or misleading information.[61]
  • Proceedings on an application under POCA.[62]
  • Proceedings ancillary to an application under POCA.[63]
  • Proceedings for enforcement of a Forfeiture Order, a Pecuniary Penalty Order, a Literary Proceeds Order, or an Unexplained Wealth Order.[64]
  • Civil proceedings for or in respect of a right or liability the document confers or imposes.[65]

Freezing Orders

A Freezing Order is a Magistrate issued order that a financial institution not allow a withdrawal from an account with the institution if there are reasonable grounds to suspect (broadly) that the balance of the account is proceeds of an indictable offence, or is wholly or partly an instrument of a serious offence, and there is a risk that the balance of the account will be reduced.[66] The major limiting factor on Freezing Orders is that their standard duration is 3 working days.[67]

As the threshold of proof for a Freezing Orders is relatively analogous to that of Restraining Orders, it is a rare occurrence for a Freezing Order to be issued when Restraining Orders can cover more property than just a bank account and are not valid for only 3 working days.

Restraining Orders

The purpose of Restraining Orders is to restrain property to prevent its dissipation until the conclusion of the proceedings which usually occurs at forfeiture. POCA restraint can occur without a criminal conviction and/or without a criminal charge. Generally POCA action will commence though when a suspect has been charged as it is then easier to satisfy a judge that the AFP Member holds their suspicion required for restraint on reasonable grounds if the suspect has analogously been charged for related offences.

In the event that a suspect has not been criminally charged, it is still possible to obtain POCA restraint, upon the civil standard, but following Briginshaw,[68] as POCA action involves the stripping of people’s assets, the balance of probabilities will be adjudged within a relatively serious context. This may require adjudication to a higher level of satisfaction within the balance of probabilities.

Required Elements Common to All Restraining Orders

A court with “proceeds jurisdiction”

“Proceeds jurisdiction” is extensively defined in section 335 POCA, but generally speaking, the court that has jurisdiction to deal with criminal matters on indictment in the respective State or Territory is the court that has jurisdiction to deal with the proceeds of crime matter.

NSW – Supreme Court of New South Wales.

VIC – Supreme Court of Victoria.

QLD – Supreme Court of Queensland.

SA – Supreme Court of South Australia.

WA – Supreme Court of Western Australia.

Tas – Supreme Court of Tasmania.

NT – Supreme Court of the Northern Territory.

ACT – Supreme Court of the ACT.

If the restraining order relates to a person, the correct State or Territory is the State or Territory where the conduct constituting the offence occurred, or is reasonably suspected of occurring. If the restraining order is in relation to property (in rem), it is the State or Territory where the property is located.

A “proceeds of crime authority” applies for the order

A “proceeds of crime authority” means either the CDPP or the AFP. The Commissioner of the AFP’s authority in this respect is internally delegated to Manager Criminal Assets Litigation (MCAL), who oversees the Criminal Assets Litigation team within the AFP.

The threshold of “reasonable suspicion”

Referring to:

  • The court is satisfied that the authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds;
  • There are reasonable grounds to suspect …

Suspicion: ‘in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.”[69]

‘When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.’[70]

For the threshold of reasonable suspicion to be met, the usual criminal or civil standards of proof need not be established. It is a lower threshold to meet. It is an even lower threshold than the establishment of a prima facie case.[71]

When a court is assessing reasonable suspicion, it does not substitute its own opinion for that of the [deponent].[72]

The material which establishes the reasonable grounds for suspicion does not necessarily need to be admissible evidence.[73]

In summary, the requisite threshold of reasonable suspicion is not a high bar to overcome. It is merely a suspicion that is held reasonably. For example, if an authorised officer deposes that they suspect that Joe Bloggs has committed an offence against s 400.9(1) of the Schedule to the Criminal Code Act 1995 (Cth), based on the opinion of Sam Smith (who himself is a convicted criminal), this may not be a suspicion held reasonably (at least not to the satisfaction of a Judge).

This is in contrast to an authorised officer deposing that they suspect that Joe Bloggs has committed an offence against s 400.9(1) of the Schedule to the Criminal Code Act 1995 (Cth), based on:

  • A large amount of cash found on Joe Bloggs, which is not commensurate with Joe Bloggs’s declared income;
  • Joe Bloggs’s previous criminal convictions;
  • No reasonable explanation forthcoming for holding the large amount of cash;
  • A section 400.9(1) of the Schedule to the Criminal Code Act 1995 (Cth) charge being laid and currently before the courts;
  • Statements of Police Officers deposing to the fact that they found a large amount of cash on Joe Bloggs’s person;
  • Lawfully intercepted telecommunications transcripts showing conversations Joe Bloggs had discussing the movement of large amounts of cash;
  • Statements and/or photos of surveillance activity of Joe Bloggs showing the handling and movements of large cash amounts;

If an authorised officer held a suspicion against Joe Bloggs based on the abovementioned dot points, this may be a reasonably held suspicion. Repeating what’s mentioned earlier, ‘reasonable suspicion’ is not a high bar to meet, it does not need to be based on admissible evidence, it merely needs to be a suspicion, held reasonably.

Restraining Orders relating to people convicted of or charged with indictable offences – s 17

This Restraining Order allows the restraint of property of a person whom has been convicted of, charged with, or it is proposed that they be charged with an indictable offence.[74] An authorised officer will need to depose that the officer reasonably suspects that the suspect has committed the offence if the person has not yet been convicted.

The required elements for a successful s 17 Restraining Order are:

  • The application is heard before a court with proceeds jurisdiction;
  • A proceeds of crime authority applies for the order;
  • A person has either been:
    • Convicted of;
    • Been charged with;
    • It is proposed that the person be charged with

an indictable offence.

  • Affidavit requirements of the authorised officer are met;[75]

The property in question can either be specified property or all property of the suspect.[76] The order can specify that the Restraining Order covers property that is acquired by the suspect after the court makes the order.[77]

It is ambiguous for the purposes of section 17 what constitutes conviction. The definition of ‘conviction’ depends upon what context it is considered.[78] There must be some act or determination by the court before it can be said that a person has been convicted.[79] Consideration of the term conviction in the state confiscation law context has concluded that conviction can occur before a formal allocutus, and before the person is sentenced.[80] Consideration of the term ‘conviction’ in the context of the forerunner to POCA, the Proceeds of Crime Act 1987 (Cth), found that a person was convicted when the trial judge accepted the jury’s verdict and remanded her in custody for sentencing.[81]

Restraining Orders relating to people suspected of committing serious offences – s 18

This Restraining Order allows the restraint of property of a person whom it is suspected has committed a serious offence.[82] The fundamental difference between s18 and s 17 Restraining Orders is that s 17 applies to indictable offences, whereas s 18 applies to serious offences. Whether an offence is a serious offence or not depends on the conduct constituting the said offence/s and in some circumstances the financial amounts related to the criminal conduct. The conduct and/or financial amounts relating to the conduct will need to be compared to the definition of ‘serious offence’ in section 338 of the Proceeds of Crime Act 2002 (Cth), to see if it meets that definition.

The required elements for a successful s 18 Restraining Order are:

  • The application is heard before a court with proceeds jurisdiction;
  • A proceeds of crime authority applies for the order;
  • There are reasonable grounds to suspect that a person has committed a serious offence, and the court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds;
  • Affidavit requirements of the authorised officer are met;[83]

The property in question can either be specified property or all property of the suspect.[84] The order can specify that the Restraining Order covers property that is acquired by the suspect after the court makes the order.[85]

Restraining Orders relating to property (in rem) suspected of being proceeds of indictable offences – s 19

This Restraining Order allows the restraint of property where there are reasonable grounds for suspecting the property is the proceeds of an indictable offence inter alia,[86] or an instrument of a serious offence.

Generally, proceeds of an offence is property that is partly or wholly derived or realised, directly or indirectly, from the commission of the offence.[87]

Generally, an instrument of an offence is property that is intended to be, or is used in, or in connection with, the commission of an offence.[88]

The required elements for a successful s 19 Restraining Order are:

  • The application is heard before a court with proceeds jurisdiction;
  • A proceeds of crime authority applies for the order;
  • There are reasonable grounds to suspect that the property is either:
    • The proceeds of an indictable offence;[89]
    • An instrument of a serious offence;
  • The application for the order is supported by an affidavit of an authorised officer stating that the authorised officer suspects that:
    • In any case – the property is the proceeds of the offence; or
    • If the offence to which the order relates is a serious offence – the property is an instrument of the offence;

and including the grounds on which the authorised officer holds the suspicion.

  • The court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds;

Restraining Orders relating to literary proceeds from indictable offences – s 20

This Restraining Order allows the restraint of property of a person where there are reasonable grounds to suspect that a person has committed an indictable offence and the person has derived literary proceeds[90] in relation to the offence. Literary proceeds are any benefit that a person derives from the commercial exploitation of the person’s notoriety resulting, directly or indirectly, from the person committing an indictable offence.[91] Commercial exploitation includes publishing in written or electronic form, any use of media from which visual images, words or sounds can be produced, or any live entertainment, representation or interview.[92]

The required elements for a successful s 20 Restraining Order are:

  • The application is heard before a court with proceeds jurisdiction;
  • A proceeds of crime authority applies for the order;
  • There are reasonable grounds to suspect that a person has committed an indictable offence,[93] and the person has derived literary proceeds in relation to the offence;
  • Affidavit requirements of the authorised officer are met;[94]
  • The court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.

The property in question can either be specified property or all property of the suspect.[95] The order can specify that the Restraining Order covers property that is acquired by the suspect after the court makes the order.[96]

Restraining Orders relating to unexplained wealth – s 20A

Restraining Orders pertaining to unexplained wealth were introduced via the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth). The unique element of unexplained wealth orders is that there are reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired.

Total wealth is defined as the sum of all of the values of the property that constitutes the person’s wealth.[97]

Wealth is defined as:[98]

  • Property owned by the person at any time;
  • Property that has been under the effective control of the person at any time;
  • Property that the person has disposed of (whether by sale, gift, or otherwise) or consumed at any time;

including property owned, effectively controlled, disposed of or consumed before the commencement of this Part.

Wealth is only considered to be lawfully acquired if:[99]

  • The wealth was lawfully acquired; and
  • The consideration given for the wealth was lawfully acquired; and
  • The wealth is not proceeds or an instrument of the offence.

The required elements for a successful s 20A Restraining Order are:

  • The application is heard before a court with proceeds jurisdiction;
  • A proceeds of crime authority applies for the order;
  • There are reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired;
  • Affidavit requirements of the authorised officer are met;[100]
  • The court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds;
  • There are reasonable grounds to suspect either or both of the following:
    • That the person has committed an offence against a law of the Commonwealth;[101]
    • That at least part of the person’s wealth was derived or realised, directly or indirectly, from an offence against a law of the Commonwealth.[102]

The property in question can either be specified property or all property of the suspect.[103] The order can specify that the Restraining Order covers property that is acquired by the suspect after the court makes the order.[104]

Restraining Orders Generally

Generally speaking, section 17 and 18 orders are more commonly used when an individual has been charged or it is known that they will be charged with an offence. Section 19 orders are also used when there is a large amount of evidence to suggest that the property in question is either the proceeds of an indictable offence and/or the instrument of a serious offence, and no one is laying claim to the property. The more exotic Restraining Orders such as section 20 and section 20A are used less often.

It is much easier to obtain restraining orders (and subsequent forfeiture) when there is a conviction on foot (at least in relation to in personam orders). Even though technically, the POCA is a civil based (balance of probabilities) forfeiture scheme, the amount of evidence required to be provided is to a relatively high level of satisfaction as per Briginshaw.

Restraining Orders are often sought ex-parte,[105] usually to prevent the potential dissipation of funds if the other party were put on notice.

Relief from Restraining Orders

Allowance for Expenses

The court has a discretion to allow reasonable living expenses / reasonable business expenses / a specified debt incurred in good faith by that person to be met out of property covered by a restraining order,[106] if inter alia, the court is satisfied that the person cannot meet the expense or debt out of property that is not covered by the restraining order.

The criteria is:[107]

  • The person whose property is retrained has applied for the order;
  • The person has notified the AFP in writing of the application and the grounds[108] for the application;
  • The person has disclosed all of their interests[109] in property, and all of their liabilities in a statement on oath that has been filed in court;
  • The court is satisfied that the expense or debt does not, or will not, relate to legal costs that the person has incurred, or will incur, in connection with proceedings under POCA or proceedings for a criminal offence;
  • The court is satisfied that the person cannot meet the expense or debt out of property that is not covered by the restraining order.

If property the subject of a restraining order cannot be taken by the Australian Financial Security Authority (AFSA) in a reasonably practicable manner, it is taken not to be covered by the restraining order for the purposes of this section.[110] That is, if there is some property that is covered by the restraining order but AFSA cannot take custody and control of the property in a reasonably practicable manner, the court would need to be satisfied that the person cannot meet the expense or debt out of this property, before being successful in an application for Allowance for expenses. In the event that an Allowance for expenses application is refused due to only this reason, it is open to the court to exclude this said property from the restraining order[111] to meet reasonable living expenses / reasonable business expenses / a specified debt incurred in good faith by that person.

Excluding Property from Restraining Orders (ss 17, 18, or 19)

In order to get an interest excluded from a restraining order, generally speaking, the court must be satisfied that the specified interest in property is neither proceeds, nor an instrument.[112]

If an ex-parte restraining order is made, a person whom claims an interest in property that is covered by the restraining order may seek an exclusion application.[113]

The court must not hear an application to exclude specified property from the restraining order is the restraining order is in force and the AFP has not been given a reasonable opportunity to conduct examinations[114] in relation to the application.

Excluding property from a section 17 and/or section 18 restraining order can also not occur unless the court is satisfied that neither a PPO or literary proceeds order could be made against the person who has the interest (or is under their effective control). If the AFP have sought a PPO in their originating Summons in relation to the matter, this may present an issue in this respect.[115] At the very least it will bring into argument the question as to whether a PPO could be made.

Applications for exclusion can also occur if the person is put on notice of the upcoming restraining order application.[116]

Revoking a Restraining Order

If a restraining order was made ex-parte, a person may apply to the court to revoke the order.[117] The application must be made within 28 days.[118] This time period can be extended for up to 3 months if the court allows.[119]

The applicant must give written notice to the AFP and AFSA of both the application and grounds[120] on which the revocation is sought.[121]

The restraining order remains on foot until the court revokes the order.[122]

The court has a discretion[123] to revoke the restraining order if it is satisfied that:

  1. There are no grounds on which to make the order at the time of considering the application to revoke the order; or
  2. It is otherwise in the interests of justice to do so.

As the relevant threshold for restraining orders is a ‘reasonable suspicion’, revoking a restraining order can prove difficult. As previously mentioned, ‘reasonable suspicion’ is a low bar to meet, and therefore establishing that there were no grounds (in relation to point (a) above) to make the restraining order, is difficult.

The assessment of whether there are grounds or not in relation to the restraining order is an assessment done at the time of the application to revoke the order,[124] not at the time that the restraining order was made.

Point (b) above provides another avenue for the court to revoke the restraining order exclusive of point (a), namely it is in the ‘interests of justice’ to revoke the order.

Custody and Control

Part of the POCA regime is to allow the Official Trustee (being AFSA) to take custody and control of property covered by a restraining order if the court is satisfied that this is required.

This is obviously required to give effect to restraining orders and stop people dissipating certain property.

Ancillary Orders

The court that made a restraining order, or any other court that could have made the restraining order, may make any ancillary orders.[125] Ancillary orders are generally directed at giving effect to restraining orders inter alia.

Ancillary order examples include:

  • An order directing the suspect in relation to the restraining order to give a sworn statement to the AFP, setting out all of their interest in property, and their liabilities.[126]
  • Orders requiring an owner or previous owners of property to provide a sworn statement, setting out dealings with the property.[127]
  • Orders requiring another person (if the court is satisfied that there are reasonable grounds to suspect that the person has information relevant to identifying, locating or quantifying the property), to produce a sworn statement setting out dealings with the property.[128]
  • Orders concerning the mechanics and practicalities of AFSA actually taking custody and control of certain items.[129]

It’s worth noting in regards to the sworn statement provisions, that pleading privilege against self-incrimination is expressly denied as an excuse.[130] Notwithstanding this, a sworn statement is not admissible in civil or criminal proceedings against the person who made the statement[131] except in:

  • Criminal proceedings for giving false or misleading information;
  • Proceedings on an application under the POCA;
  • Proceedings ancillary to an application under POCA;
  • Proceedings for enforcement of a forfeiture order, pecuniary penalty order, literary proceeds order or an unexplained wealth order.

While a sworn statement is not admissible in civil or criminal proceedings against the person who made the statement, it is worth noting:

  • It is admissible in proceedings against another person;[132]
  • Using the information derivatively is not prohibited.[133] Therefore information or things that are subsequently obtained by authorities acting on information from the sworn statement are potentially admissible in civil or criminal proceedings against the maker of the statement.

So for example, if a sworn statement provided information that the maker of the statement committed a crime, while the statement itself could not be used against that person in a criminal or civil proceeding,[134] this can trigger an investigation into the crime committed (as the maker of the statement said / referred to in their statement). This investigation then can find other evidence which is admissible in criminal or civil proceedings against the maker of the statement;

  • The sworn statement can be provided to other agencies such as State and Territory Police, ATO, and foreign law enforcement bodies.[135]

Revoking an Ancillary Order

If a person is affected by an ancillary order[136] and the order was heard without notice,[137] the person can apply to revoke the order within 14 days after the person was notified of the ancillary order.[138]

While the application is on foot, the ancillary order is stayed until the court determines the application.[139] The court can revoke the ancillary order on application if it considers it appropriate to do so[140] and in doing so, the court may have regard to any matter it considers appropriate in determining the application.[141]

Forfeiture Orders

Things relevant to all forfeiture orders

If the application relates to a person’s conviction of an indictable offence, the forfeiture application must be made within 6 months[142] of the ‘conviction day’.[143]

It is incumbent upon the AFP to provide notice of an application of a forfeiture order to:[144]

  • if the order is sought relating to a person’s conviction of an offence – the person; and
  • any person who claims an interest in property covered by the application; and
  • any person whom the AFP reasonably believes may have an interest in that property.

unless the person has absconded.[145]

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.[146]
  • The restraining order has been in force for at least 6 months;[147]
  • 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.[148]
    • Note:
      • The court must find on the balance of probabilities[149] 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.[150]
      • 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.[151]

Section 48 Forfeiture Orders – Convictions for indictable offences

Section 48 forfeiture orders are a stand-alone type forfeiture order and are not dependent upon having a restraining order on foot. While the AFP have carriage of most matters relating to POCA, both the AFP and the CDPP have the authority under the act to make applications.[152] Pursuant to an agreement between the CDPP and the AFP,[153] the CDPP are the authority that make applications under POCA for the purposes of section 48.

The required elements are:

  • The CDPP applies to a court with proceeds jurisdiction for the order;
  • A person has been convicted[154] of one or more indictable offences;
  • The court is satisfied that the property to be specified in the orders is proceeds[155] or an instrument[156] of one or more of the offences.

If the court is satisfied that the property to be specified in the order is proceeds of one or more of the offences, the court must make the forfeiture order.[157] If the court is not satisfied that the property to be specified in the order is not proceeds of one or more of the offences,[158] but the court is satisfied that the property to be specified in the order is an instrument of one or more of the offences, the court has a discretion to grant the forfeiture order.[159]

The discretion afforded in relation to the forfeiture of instruments of crime is in recognition that forfeiture of instruments may be unduly harsh in some circumstances. An example is a court finding that a hire car is an instrument of an indictable offence, and therefore liable to forfeiture. Given the use that is ordinarily made of the car (viz. s 48(3)(b) POCA), the court may decline to make the forfeiture order.[160]

In making the order, the court can consider:[161]

  • Any hardship that may reasonably be expected to be caused to any person by the operation of the order;
  • The use that is ordinarily made, or was intended to be made, of the property to be specified in the order;
  • The gravity of the offence or offences concerned.

Section 49 Forfeiture Orders – Property suspected of being proceeds of indictable offences etc. (flowing on from section 19 (in rem) restraining orders).

After a section 19 restraining order has been in place for 6 months, the AFP can apply for a forfeiture order.

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 49 POCA;
  • The restraining order has been in force for at least 6 months;[162]
  • The court is satisfied that one or more of the following applies:[163]
    • The property is proceeds of one or more indictable offences;
    • The property is an instrument or one or more serious offences;
  • The court is satisfied that the AFP have notified people with an interest in the property.

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,[164] 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.[165]

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.[166] 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.[167]

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).[168]

It is incumbent upon the applicant for exclusion to provide written notice to the AFP or CDPP of both the application and grounds[169]

If the AFP has had a reasonable opportunity[170] 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.[171]

Furthermore, it should be noted that an application for an exclusion order cannot be heard[172] until the AFP has had a reasonable opportunity[173] to conduct examinations in relation to the application. As examinations compel an examinee to answer questions,[174] 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[175]

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[176]

If the AFP has had a reasonable opportunity[177] 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.[178]

Furthermore, it should be noted that an application for an exclusion order cannot be heard[179] until the AFP has had a reasonable opportunity[180] to conduct examinations in relation to the application. As examinations compel an examinee to answer questions,[181] it may not be in the applicant’s interest to seek exclusion.

Compensation for proportion of property not derived or realised from commission of any offence

A court that made a restraining order in section 92(1)(b) POCA must make an order to pay the applicant an amount of compensation[182] if:

  • A person applies for an order under section 94A 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 a proportion of the value of the applicant’s interest was not derived or realised, directly or indirectly, from the commission of any offence;
  • The court is satisfied that the applicant’s interest is not an instrument of any offence.

A section 94A compensation order can be made at any time.[183] However, the person may be restricted from applying under this section if they were given notice under section 92A, and did not make an application prior to forfeiture, unless a good reason exists inter alia.[184]

It is incumbent upon the applicant for compensation to provide written notice to the AFP of both the application and grounds[185]

If the AFP has had a reasonable opportunity[186] 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.[187]

Furthermore, it should be noted that an application for an exclusion order cannot be heard[188] until the AFP has had a reasonable opportunity[189] to conduct examinations in relation to the application. As examinations compel an examinee to answer questions,[190] it may not be in the applicant’s interest to seek exclusion.

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.

General principles applying to forfeiture orders

Once property is the subject of a forfeiture order (and requisite appeal times have been exhausted)[191], AFSA disposes of any property that is not money and provides the money to the confiscated assets account minus any costs, charges, and expenses payable to or incurred in connection with the disposal of the property.[192] If AFSA is required to deal with property specified in a forfeiture order but has not yet begun, the Minister[193] may direct that the property be dealt with in a different way.

Acquittal or quashing of conviction in relation to section 47, 48, or 49 forfeiture order

If a person is acquitted of their previous conviction after the making of a forfeiture order, or if the person’s conviction is quashed,[194] this does not affect a section 47 or section 49 forfeiture order.[195] For a section 48 forfeiture order, the forfeiture order is considered discharged if the CDPP[196] does not apply for the order to be confirmed within 14 days of the person’s conviction being quashed.[197]

If the CDPP are seeking confirmation of a section 48 forfeiture order after that person’s conviction has been quashed, the CDPP must give written notice of the confirmation application[198] to the person whose conviction was quashed, and any person whom the CDPP reasonably believes may have had, or may have an interest in the property.

The court has a discretion to confirm the forfeiture order if it is satisfied that it could have made a forfeiture order under section 47 or section 49 in relation to the offence which was quashed if, when the authority applied for an order under section 48, it had instead used either section 47 or 49.[199] The requisite time limits for a restraining order to have been in place for 6 months for both a section 47[200] and section 49[201] forfeiture order are taken to be satisfied[202] for these purposes.

If the court confirms the order by finding that the court could have made the original section 48 forfeiture order, via a section 47 forfeiture order, then the original forfeiture order is taken not to have been affected by the quashing of the person’s conviction.[203]

If the court confirms the order by finding that the court could have made the original section 48 forfeiture order, via a section 49 forfeiture order, then if property the subject of the forfeiture order is proceeds of the offence, or (if the offence is a serious offence), an instrument of the offence, then the original forfeiture order is taken not have been affected by the quashing of the person’s conviction.[204]

If the court confirms the order by finding that the court could have made the original section 48 forfeiture order, via a section 49 forfeiture order, then if property the subject of the forfeiture order is not proceeds of the offence, or (if the offence is a serious offence), not an instrument of the offence, then the original forfeiture order is discharged.[205]

If the court decides not to confirm the original forfeiture order, then the original forfeiture order is discharged.[206]

Quashing of conviction in relation to section 92 forfeiture order

If:

  • a person’s conviction is quashed;[207] and
  • the forfeiture does not relate to convictions for other offences that have not been quashed; and
  • the AFP does not apply within 14 days after the conviction is quashed for the forfeiture order to be confirmed;

then the forfeiture order ceases to have effect.

If the AFP are seeking confirmation of a section 92 forfeiture order after that person’s conviction has been quashed, the AFP must give written notice of the confirmation application[208] to the person whose conviction was quashed, and any person whom the AFP reasonably believes may have had, or may have an interest in the property.

The court has a discretion to confirm the forfeiture order if it is satisfied that it could have made a forfeiture order under section 47 or section 49 (in relation to the offence which was quashed), if the authority were to apply for an order under that section. The requisite time limits for a restraining order to have been in place for 6 months for both a section 47[209] and section 49[210] forfeiture order are taken to be satisfied[211] for these purposes.

If the court confirms the order by finding that it could make a section 47 forfeiture order, then the original forfeiture order is taken not to have been affected by the quashing of the person’s conviction.[212]

If the court confirms the order by finding that it could make a section 49 forfeiture order, then if property the subject of the forfeiture order is proceeds of the offence, or (if the offence is a serious offence), an instrument of the offence, then the original forfeiture order is taken not have been affected by the quashing of the person’s conviction.[213]

If the court confirms the order by finding that it could make a section 49 forfeiture order, then if property the subject of the forfeiture order is not proceeds of the offence, or (if the offence is a serious offence), not an instrument of the offence, then the forfeiture ceases to have effect.[214]

If the court decides not to confirm the original forfeiture order, then the original forfeiture order is discharged.[215]

Buying Back Forfeited Property from a sections 47, 48, or 49 order

A court that makes a forfeiture order against property may make an order excluding a specified interest from a forfeiture order[216] if it is satisfied that:

  • It would not be contrary to the public interest for a person’s interest in the property to be transferred to the person; and
  • There is no other reason why the person’s interest in the property should not be transferred to that person.

If a court makes a forfeiture order against property, and excludes the interest that is to be bought back, then the Minister[217] must arrange for the interest to be transferred to the person in whom it was vested immediately before the property was forfeited to the Commonwealth.[218]

Buying Back Forfeited Property from a section 92 automatic forfeiture order

A court that makes a forfeiture order against property may make an order declaring that the forfeiture order[219] ceases to operate in relation to the applicant’s interest if:

  • It would not be contrary to the public interest for a person’s interest in the property to be transferred to the person; and
  • There is no other reason why the person’s interest in the property should not be transferred to that person.

If a court makes a forfeiture order against property, and excludes the interest that is to be bought back, then the Minister[220] must arrange for the interest to be transferred to the person in whom it was vested immediately before the property was forfeited to the Commonwealth.[221]

Relieving dependants of hardship (section 72 POCA)

If the court is making a forfeiture order (not being a section 48 POCA forfeiture order) and is satisfied that:

  • The forfeiture would cause hardship to the dependent of a person of whose property is the subject of a forfeiture order; and
  • A payment of a specified amount of money made to that dependent would relieve that hardship; and
  • If the dependent is at least 18 years old, the dependent had no knowledge of the person’s conduct that is the subject of the forfeiture order;

then the court must make an order directing the Commonwealth to pay that specified amount to the dependent.

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;[222]
  • an instrument of any serious offence (if an offence on which the order was (or would be) based is a serious offence).[223]

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.[224]

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;[225] and
  • the forfeiture order, or the forfeiture application specifies property in which the applicant has an interest.[226]

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.[227]

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[228] or other special grounds apply.[229]

It is incumbent upon the applicant for exclusion to provide written notice to the AFP or CDPP of both the application and grounds[230] on which the order is sought.[231]

If the AFP[232] or CDPP[233] have had a reasonable opportunity[234] 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.[235]

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[236] to conduct examinations in relation to the application. As examinations compel an examinee to answer questions,[237] it may not be in the applicant’s interest to seek exclusion.

Compensation Orders

The purpose of compensation orders is to compensate for proportions of property not derived or realised from the commission of any offence.

A court that made a forfeiture order (or that is hearing, or is going to hear an application for a forfeiture order) must make a compensation order[238] if:

  • a person has applied for a compensation order;[239]
  • the court is satisfied that:
    • the applicant has an interest in property specified in the forfeiture order or in the application of the forfeiture order;[240]
    • a proportion of the value of the applicant’s interest was not derived or realised (directly or indirectly) from the commission of any offence;[241]
    • the applicant’s interest is not an instrument of any offence;[242] and
    • if a court is currently hearing or is to hear an application for a forfeiture order, the court makes the forfeiture order.[243]

A compensation order will direct the Commonwealth (once the property has vested absolutely in it) to dispose of the property (if it has not already been disposed of), and pay the applicant the proportion of the value of the applicant’s interest that was not derived or realised (directly or indirectly) from the commission of any offence minus AFSA’s costs, charges, and expenses payable to or incurred in connection with the disposal of the property.[244]

For example, if the forfeited property was a $200,000 house which had been obtained with $150,000 from the proceeds of an offence and $50,000 from legitimately obtained income, the person would be entitled to 25% of the value of the house. After the house is disposed of and the costs etc. of the OT [AFSA] have been met… the person would be entitled to compensation equal to 25% of the net amount.[245]

A person can apply for a compensation order if an application for a forfeiture order is on foot that could specify property in which the person claims an interest. The application for compensation can be made before the actual forfeiture order has been made.[246]

A person who claims an interest in property can apply for a compensation order after a forfeiture order has been made if they were not notified of the forfeiture application[247] or other special grounds apply.[248]

It is incumbent upon the applicant for compensation to provide written notice to the AFP or CDPP of both the application and grounds[249] on which the order is sought.[250]

If the AFP[251] or CDPP[252] have had a reasonable opportunity[253] 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.[254]

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[255] to conduct examinations in relation to the application. As examinations compel an examinee to answer questions,[256] it may not be in the applicant’s interest to seek exclusion.

Pecuniary Penalty Orders (PPO)

PPO’s are designed to create a civil debt or a judgment debt against an offender when there are not enough assets to satisfy a forfeiture order. It prevents a criminal who is currently relatively impecunious from being subject to proceeds of crime action in relation to future activities.

A court must make an order requiring a person to pay an amount to the Commonwealth if:

  • The AFP applies for the order; and
  • The court is satisfied that:
    • The person has been convicted of an indictable offence and has derived benefits[257] from the commission of the offence; or
    • The person has committed a serious offence.

In determining whether a person has derived a benefit, it is not necessary that the person has property contained within a legal and/or equitable interest. It is enough that the property is subject to the person’s effective control.[258]

The court’s power to make a PPO is not affected by the existence of another forfeiture order, pecuniary penalty order, literary proceeds order, or an unexplained wealth order in relation to the same offence.[259]

Generally, a court must not make a PPO in relation to a person’s conviction of a serious offence within 6 months[260] of the conviction day.[261]

Determining Penalty Amount of PPO’s

Serious Offence

The value of the benefits derived from the commission of the offence + the value of benefits derived from the commission of any other offence[262] that constitutes unlawful activity[263] – reductions = Amount

Not A Serious Offence

The value of the benefits derived from the commission of the offence – reductions = Amount

Value of the Benefits Derived (aka. Subdivision B)

In assessing the value of the benefits, the court is to consider any or all of the things listed in section 122(1) Proceeds of Crime Act 2002 (Cth). Generally the things listed concern the benefit a person has derived from illegal activity.[264] It also involves a comparison of a person’s property before, during, an after the illegal activity,[265] as well as the person’s income and expenditure, before, during and after the illegal activity.[266] If the illegal activity relates to narcotic substances,[267] then a police officer or a customs officer who is experienced in the investigation of narcotics offences may testify with respect to market rates of narcotic substance.[268] Interestingly, an officer’s testimony in this context is admissible at the hearing despite any rule of law or practice relating to hearsay evidence,[269] and the matter is prima facie evidence of the matters testified.[270]

Value of Benefits Derived – Non Serious Offences

For non-serious offences, the court is to treat the value of the benefits derived by the person from the commission of the illegal activity at a minimum level of the difference between the value of the person’s property during or after the illegal activity, and the value of the person’s property before the illegal activity.[271] The amount can be reduced if the court is satisfied that the excess was due to causes unrelated to the illegal activity.[272]

Value of Benefits Derived – Serious Offences

If the offence is a serious offence and evidence is given that the value of the person’s property during or after:

  • illegal activity being the subject of the PPO (no time limit);
  • other unlawful activity that constitutes a terrorism offence (no time limit);
  • any other unlawful activity that the person has engaged in within the preceding 6 years[273] (not being a terrorism offence);

exceeded the value of the person’s property before the illegal activity and unlawful activity, then the court is to treat the value of the benefits derived by the person from the commission of the illegal activity as being not less than the amount of the greatest excess.

Expenditure incurred during the preceding 6 years,[274] is presumed to be the value of a benefit because of illegal activity, unless the contrary is proved.

Reducing PPO’s

Forfeited (under a Commonwealth law) or property proposed to be forfeited (under POCA)[275]

If property has already been forfeited under a law of the Commonwealth (including under the POCA) in relation to the unlawful activity to which the order relates, or an application has been made for a forfeiture order that would cover the property, then the penalty amount of the PPO is reduced by the value of the property as at the time of making the PPO.

Taking account of tax paid

The court must reduce the penalty amount by the amount of tax paid (before the application for the PPO is made) which is attributable to the benefits to which the PPO relates.

If an amount of tax is paid (after the application for a PPO is made) which is attributable to the benefits to which the PPO relates, the court has a discretion to reduce the penalty amount under a PPO if it considers that it is in the interests of justice to do so.

Fines payable[276]

The court has a discretion to reduce the penalty amount under a PPO by an amount payable by way of fine, restitution, compensation or damages in relation to an offence to which the order relates.

Increasing Penalty Amount

If a penalty amount was reduced because of forfeiture or a proposed forfeiture order, and an appeal against forfeiture is allowed, or the proceedings terminate without forfeiture being ordered, the penalty amount of the PPO can be increased by the amount equal to the value of the property.[277]

Likewise if there is a successful exclusion order from forfeiture (section 73 or 94 POCA), a compensation order (under section 77 or 94A POCA), or an order relating to the transfer of property (under section 102 POCA – on the basis that the interest is neither proceeds, nor an instrument, and the interest was lawfully acquired), the penalty amount of the PPO can be increased by an amount as the court considers appropriate.[278]

If a penalty amount was reduced by an amount of tax paid (pursuant to section 131 POCA), and the amount is repaid or refunded to the person in relation to that tax, then the penalty amount can be increased by an amount equal to the amount repaid or refunded.[279]

General Provisions relating to PPO’s

If the application relates to a person’s conviction of a serious offence, the application must be made within 9 months of the conviction day.[280] If the application relates to a person’s conviction of an indictable offence that is not a serious offence, the application must be made before the end of the period of 6 months after the conviction day.[281] The court may give leave to dispense with the above-mentioned time requirements in relation to applying for a PPO, it the court is satisfied that it would be in the interests of justice to allow the application.[282]

As a matter of practice, PPO’s are often applied for in the initiating Summons to forgo any issues about time limits regarding applying for PPO’s. The requested order in the Summons is then not pressed until the appropriate time period, usually being after conviction and/or determination that there are not enough assets forfeited to cover the benefit derived from the illegal activity.

The AFP must give written notice of the application for a PPO to a person who would be subject to the PPO if it were made.[283] The notice must include a copy of the application and supporting affidavit.[284] A person who would be subject to the PPO if it were made, may appear and adduce evidence at the hearing of the application.[285]

A PPO is a civil debt due by the person to the Commonwealth.[286] A PPO may be enforced as if it were made in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth.[287] The debt arising from the order is regarded as a judgment debt.[288]

A court may make an order that property subject to a person’s effective control[289] (that being a person who is the subject of a PPO), can be used to satisfy the PPO, if the AFP applies for such an order.[290]

Automatic charge on property

If a PPO is made against a person in relation to an indictable offence, and a restraining order has been made against the person’s property (including property subject to the person’s effective control which has been made the subject of an order under s 141 POCA to satisfy the PPO), and the restraining order relates to the indictable offence the subject of the PPO or a ‘related offence’[291]; then upon the making of the later of the orders, an automatic charge is created against the property.[292]

The charge is subject to every encumbrance[293] on the property (other than an encumbrance in which the person the subject of the PPO has an interest) that came into existence before the charge and that would have priority over the charge.[294]

Discharge of PPO upon quashing of conviction

If a person’s PPO is based upon committing a serious offence,[295] and the person is subsequently convicted of the offence, and then the conviction is squashed, the PPO is not affected.

If a person’s PPO is based upon conviction of an indictable offence,[296] and the conviction is subsequently quashed, then the AFP need to apply within 14 days to have the PPO confirmed or varied, otherwise the PPO is taken to be discharged.[297]

The court may confirm the PPO if the court is satisfied that when the AFP applied for the PPO, the court could have made the order without relying on the person’s conviction that was quashed.[298] That is, the court is satisfied that it could have made the PPO on the basis that there were reasonable grounds to suspect that the person committed the offence within the six years prior to the application for the PPO. If the relevant offence is a terrorism offence, then there is no six year time limit, and there is no time limit. The court must be satisfied that it could have made the order only on the reasonable grounds test, and without any reliance on the fact of the person’s conviction for that offence.[299]

If the PPO related to more than one offence, and the court could have made the PPO in relation to at least one of the offences, the court can reduce the penalty amount of the PPO by the amount that the court reasonably believes is attributable to the offence which was quashed.[300]

If the court confirms the order pursuant to section 149 Proceeds of Crime Act 2002 (Cth), or varies the order pursuant to section 149A Proceeds of Crime Act 2002 (Cth), then the order is taken not to be affected by the quashing of the person’s conviction of the offence.[301]

Literary Proceeds Orders

Literary Proceeds Orders are rarely (if ever) used, and the sections are drafted in a similar format to PPO’s. They are made on the basis of depriving people who have made literary proceeds in relation to offending. There is no requirement that a person has been convicted of the offence.

A court may make an order requiring a person to pay an amount to the Commonwealth if:

  • the AFP apply for the order;
  • the court is satisfied that the person has committed an indictable offence,[302] or a foreign indictable offence[303] (whether or not the person has been convicted of the offence); and
  • the court is satisfied that the person has derived literary proceeds in relation to the offence.

Literary proceeds must have been derived after 1 January 2003.[304] The same date restriction does not apply to when the related offence was committed.

Literary proceeds are any benefit[305] that a person derives from the commercial exploitation of:

  1. the person’s notoriety resulting, directly or indirectly, from the person committing an indictable offence[306] or a foreign indictable offence;[307] or
  2. the notoriety of another person, involved in the commission of that offence, resulting from the first-mentioned person committing that offence.

Even though the order is called a literary proceeds order, the commercial exploitation may be by any means, including, publishing in written or electronic form,[308] any use of media from which visual images, words or sounds can be produced,[309] or any live entertainment, representation or interview.[310] It is intended that a court may find that a person has commercially exploited their involvement in an indictable offence by any other means where the marketability of the product generating those benefits is related to the person’s involvement in the commission of an indictable offence or a foreign indictable offence committed by the person.[311]

If the offence is an indictable offence, it does not matter whether the benefits are derived in or outside Australia.[312] If the offence is a foreign indictable offence, then a benefit is not treated as literary proceeds unless the benefit is derived in Australia or transferred to Australia.[313]

In determining whether a person has derived literary proceeds, or the value of literary proceeds, the court may treat property that is subject to the effective control of the person, as that person’s property. This includes property that was not received by the person, but was transferred to (or in relation to money, paid to) another person at the person’s direction.[314]

In deciding whether to make a literary proceeds order, the court must consider:[315]

  • the nature and purpose of the product or activity from which the literary proceeds were derived;
  • whether supplying the product or carrying out the activity was in the public interest;
  • the social, cultural or educational value of the product or activity;
  • the seriousness of the offence to which the product or activity relates;
  • how long ago the offence was committed.

The court may take into account any other matters as it thinks fit.[316]

Quantum of literary proceeds order

The amount that a person is ordered to pay to the Commonwealth under a literary proceeds order is the amount that the court thinks is appropriate.[317]

When determining the appropriate amount, the court must deduct the following:[318]

  • any expenses and outgoing that the person incurred in deriving the literary proceeds;
  • the value of any property of the person forfeited under a forfeiture order, an interstate forfeiture order, or a foreign forfeiture order, relating to the offence to which the literary proceeds order relates, to the extent that the property is regarded as literary proceeds;
  • any amount payable by the person under a PPO;
  • an order under section 243B Customs Act 1901 (Cth) (which deals with a limited separate statutory regime of PPO’s in relation to narcotics);
  • an interstate PPO;[319]
  • a foreign PPO;[320]

that relates to the offence to which the literary proceeds order relates, to the extent that the amount is literary proceeds.

The court has a discretion to reduce the literary proceeds amount that represents the amount of tax paid that is attributable to the literary proceeds.[321]

The court has a discretion to increase the literary proceeds amount if:

  • the value of the property of the person forfeited under a forfeiture order, an interstate forfeiture order or a foreign forfeiture order was deducted from the literary proceeds and an appeal against the forfeiture or against the order is allowed. The amount of the increase is equal to the value of the property;
  • an amount payable under a PPO, an order under section 243B Customs Act 1901 (Cth), an interstate PPO, or a foreign PPO was deducted from the literary proceeds amount and an appeal against the amount payable or against the order is allowed. The amount of the increase is equal to the amount that was payable;
  • in determining a literary proceeds amount, the court took into account an amount of tax paid by the person who is the subject of the order and an amount is repaid or refunded to the person in respect of that tax. The amount of the increase is equal to the amount repaid or refunded.

A literary proceeds order is a civil debt due by the person to the Commonwealth.[322] A literary proceeds order may be enforced as if it were made in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth.[323] The debt arising from the order is regarded as a judgment debt.[324]

A court may make an order that property subject to a person’s effective control[325] (that being a person who is the subject of a literary proceeds order), can be used to satisfy the literary proceeds order, if the AFP applies for such an order.[326]

Automatic charge on property

If a literary proceeds order is made against a person in relation to an indictable offence, and a restraining order has been made against the person’s property (including property subject to the person’s effective control which has been made the subject of an order under s 168 POCA to satisfy the literary proceeds order), and the restraining order relates to the indictable offence the subject of the literary proceeds order or a ‘related offence’[327]; then upon the making of the later of the orders, an automatic charge is created against the property.[328]

The charge is subject to every encumbrance[329] on the property (other than an encumbrance in which the person the subject of the literary proceeds order has an interest) that came into existence before the charge and that would have priority over the charge.[330]

Discharge of Literary Proceeds Order upon quashing of conviction

If a person’s literary proceeds order is made in relation to an offence but not made in relation to a person’s conviction of the offence, and the person is subsequently convicted of the offence, and then the conviction is squashed, the literary proceeds order is not affected.

If a person’s literary proceeds order is based upon conviction of an offence, and the conviction is subsequently quashed, then the AFP need to apply within 14 days to have the literary proceeds order confirmed or varied, otherwise the literary proceeds order is taken to be discharged.[331]

The court may confirm the literary proceeds order if the court is satisfied that when the AFP applied for the literary proceeds order, the court could have made the order without relying on the person’s conviction that was quashed.[332]

If the court confirms the order pursuant to section 176 Proceeds of Crime Act 2002 (Cth), then the order is taken not to be affected by the quashing of the person’s conviction of the offence.[333]

Literary proceeds orders may include amounts in relation to future derived benefits if the person will derive the benefits and the benefits will be literary proceeds in relation to the offence to which the order relates.[334]

Unexplained Wealth Orders

As previously mentioned, unexplained wealth orders are relatively new.[335] Being new combined with higher complexity and more manpower that has to go into proving the requisite requirements of an unexplained wealth order means that they are not used as much as the regular ss 17, 18, 19 restraining orders and subsequent ss 47, 49, and 92 forfeiture orders.

An unexplained wealth order occurs in 3 or possibly 2 stages.

  1. Restraining Order – unexplained wealth (s 20A POCA);
  2. Preliminary Unexplained Wealth Order (s 179B);
  3. Unexplained Wealth Order (s 179E).

Restraining Order – unexplained wealth

The required elements for an Unexplained Wealth Restraining Order are:

  • The AFP apply for the order;[336]
  • There are reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired;[337]
  • That the person has committed an offence (and that part of the person’s wealth was derived or realised, directly or indirectly from an offence) against a Commonwealth law, a foreign indictable offence or a state offence with a federal aspect.[338]

Refer to the more expansive definition within POCA (s 20A), but if the elements are met, the court must make the order. It should be noted though that if there are not reasonable grounds to suspect that the difference between total wealth and the person’s wealth that was lawfully acquired is not at least $100,000[339] or it is not in the public interest to make the order,[340] then the court has a discretion to refuse to make the order.

Preliminary Unexplained Wealth Order

A court must make a preliminary unexplained wealth order requiring a person to appear before the court if:

  • The AFP apply for this order;[341]
  • The court is satisfied that an authorised officer has reasonable grounds to suspect that the person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired.[342]

As the second above-mentioned dot point is a duplicate of one of the required elements from an Unexplained Wealth Restraining Order, if an Unexplained Wealth Restraining Order is in force, then this element is not required for the Preliminary Unexplained Wealth Order.[343]

The purpose of the Preliminary Unexplained Wealth Order (besides being a prerequisite of an Unexplained Wealth Order) is to require the person to appear before the court for the purpose of enabling the court to decide whether or not to make an Unexplained Wealth Order in relation to the person.[344]

Similar to the provision in the Unexplained Wealth Restraining Order, it should be noted that if there are not reasonable grounds to suspect that the difference between total wealth and the person’s wealth that was lawfully acquired is not at least $100,000,[345] then the court has a discretion to refuse to make the order.

Revocation of Preliminary Unexplained Wealth Order

There is limited scope to revoke a Preliminary Unexplained Wealth Order, which is in contrast to the relatively low threshold to obtain a Preliminary Unexplained Wealth Order (reasonable suspicion).

The court has a discretion to revoke a Preliminary Unexplained Wealth Order is it is satisfied of one of the following:

  • There are no grounds on which to make the order at the time of considering the application to revoke the order.[346]

In other words, the original Preliminary Unexplained Wealth Order should have never been made because the threshold of reasonable suspicion was not met.

  • It is in the public interest to do so.[347]

As in, it is in the public interest to revoke the Preliminary Unexplained Wealth Order.

  • It is otherwise in the interests of justice to do so.[348]

Unexplained Wealth Order

A court must make an order requiring a person to pay an amount to the Commonwealth if:

  • The court has made a Preliminary Unexplained Wealth Order in relation to the person;[349] and
  • The court is not satisfied that any part of the person’s wealth was not derived or realised, directly or indirectly, from an offence against a law of the Commonwealth, a foreign indictable offence, or a state offence that has a federal aspect.[350]

The order must specify an amount which is the difference between the person’s total wealth and the sum of the values of the property that the court is satisfied was not derived or realised, directly or indirectly, from an offence.[351] This amount is known as the unexplained wealth amount.

The court has a discretion to refuse to make the order if the unexplained wealth amount is less than $100,000, or it is not in the public interest to make the order.[352]

It should be noted:

  • The burden of proving that a person’s wealth is not derived or realised, directly or indirectly, from an offence lies on the person;[353]
  • The court may have regard to information not included in the application when considering whether to make an Unexplained Wealth Order;[354]
  • Even if the person failed to appear as required by the Preliminary Unexplained Wealth Order, this does not stop the court making the Unexplained Wealth Order.[355]

Determining Unexplained Wealth Amount

In determining what constitutes a person’s wealth, regard can be taken to property that has been owned by the person at any time,[356] property that has been under the effective control of the person at any time,[357] and property that has been disposed of (whether by sale, gift or otherwise) or consumed at any time.[358]

Reducing Unexplained Wealth Amount

In determining the unexplained wealth amount, the court must deduct amounts[359] in relation to (the value, at the time of making the order, of any property the person forfeited under) a forfeiture order[360] and the sum of any amounts payable by the person under PPO’s.[361]

Hardship for Dependants

If the court is satisfied that:

  • The unexplained wealth order would cause hardship to the dependant; and
  • The specified amount would relieve that hardship; and
  • If the dependant is at least 18 years old, the dependant had no knowledge of the person’s conduct that is the subject of the unexplained wealth order,

then the court must make an order directing the Commonwealth to pay a specified amount to a dependant of the person.[362] The amount specified must not exceed the person’s unexplained wealth amount.[363]

General Provisions Relating to Unexplained Wealth Orders

An Unexplained Wealth Order is a civil debt due by the person to the Commonwealth.[364] An Unexplained Wealth Order may be enforced as if it were made in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth.[365] The debt arising from the order is regarded as a judgment debt.[366]

A court may make an order that property subject to a person’s effective control[367] (that being a person who is the subject of a PPO), can be used to satisfy the PPO, if the AFP applies for such an order.[368]

If an Unexplained Wealth Order is made against a person, and a restraining order has been made against the person’s property (including property subject to the person’s effective control), and the restraining order relates to the person’s property; then upon the making of the later of the orders, an automatic charge is created against the property.[369]

The charge is subject to every encumbrance[370] on the property (other than an encumbrance in which the person the subject of the Unexplained Wealth Order has an interest) that came into existence before the charge and that would have priority over the charge.[371]

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.[372] The rules of construction that apply only to criminal law do not apply to the POCA.[373] The rules of evidence that apply only in criminal proceedings do not apply to the POCA.[374]

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.[375] If the order is a forfeiture order under section 47 or 49, the 6 month time period is not required.[376]

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.[377] 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[378]
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.[379]

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.[380] To prevent prejudice or for any other reason, it’s possible to close the court for proceedings under POCA.[381]

Cooperation in relation to POCA proceedings can be taken into account in sentencing in relation to conviction of an indictable offence.[382]

Glossary

Note: Within the POCA, words that have a definition are denoted with a * next to them. Section 338 POCA contains the definitions.

Effective Control

It is not necessary that a person has a legal or equitable estate or interest in the property, nor is it necessary that a person has a right, power, or privilege in connection with the property.

If property is held on trust for the benefit of a person, this is deemed as being under effective control.

If property is disposed of to another person without sufficient consideration,[383] either 6 years before, or 6 years after an application for a restraining order, forfeiture order, pecuniary penalty order, literary proceeds order, or an unexplained wealth order is made, then the property is still deemed as being under the effective control of the person who held the property before it was disposed.

The corporate veil may be pierced when determining effective control.[384]

The court may also have regard to:[385]

  • shareholdings or directorships over a company (that owns property);
  • any trust relationship;
  • as well as the relationships between the various natural persons, companies and/or trusts which have an interest in the property.

Indictable Offence

An offence against a law of the Commonwealth (or a non-governing Territory), that may be dealt with as an indictable offence (even if may also be dealt with as a summary offence in some circumstances).

Instrument

Property is an instrument of an offence if the property is intended to (or is) used in or in connection with, the commission of an offence.

It does not matter whether the property is in or outside of Australia.

Property becomes an instrument if:

  • the property is wholly or partly derived or realised from a disposal or other dealing with an instrument of an offence;[386]
  • the property is wholly or partly acquired using an instrument of the offence;[387]
  • a loan against the property is partly discharged using an instrument of the offence[388] (This covers situations such as a mortgage against a house being repaid using an instrument of an offence. If this occurs, the house is then considered to be proceeds);
  • the cost of retaining, maintaining, or making improvements to the property are partly met using an instrument of the offence[389] (This covers the situation of renovating a property using an instrument of an offence).

If the owner of the property that was an instrument of an offence ceased to be the owner, but then the person acquired the property again, then the property becomes an instrument again.[390]

Lawfully acquired

Property or wealth is lawfully acquired if:

  • the property or wealth was lawfully acquired; and
  • the consideration given for the property or wealth was lawfully acquired; and
  • the property or wealth is not proceeds or an instrument of the offence.

Proceeds

Property is proceeds of an offence if it is (wholly or partly) derived or realised, whether directly or indirectly, from the commission of an offence.

It does not matter whether the property is in or outside of Australia.

Property becomes proceeds when:

  • the property is wholly or partly derived or realised from a disposal or other dealing with proceeds of an offence;[391]
  • the property is wholly or partly acquired using proceeds of the offence;[392]
  • a loan against the property is partly discharged using proceeds of the offence[393] (This covers situations such as a mortgage against a house being repaid using proceeds. If this occurs, the house is then considered to be proceeds);
  • the cost of retaining, maintaining, or making improvements to the property are partly met using proceeds of the offence[394] (This covers the situation of renovating a property using proceeds of an offence).

Property ceases to be proceeds of an offence when:

  • it is acquired by a third party for sufficient consideration without the third party knowing, and in circumstances that would not arouse a reasonable suspicion, that the property was proceeds of an offence;[395]
  • if the property has been distributed in accordance with:
    • an order under the Family Law Act 1975 (Cth) with respect to the property of the parties to a marriage (or a de-facto relationship)[396] or either of them;[397] or
    • a financial agreement, or part VIIIAB financial agreement within the meaning of the Family Law Act 1975 (Cth).[398]

And 6 years have elapsed since that distribution;

If the owner of the property that was proceeds of an offence ceased to be the owner, but then the person acquired the property again, then the property becomes proceeds again.[399]

Serious Offence

The definition of serious offence is large and will be dependent in some circumstances upon the conduct of the criminal offending.

Generally:

  • drug trafficking, money laundering and serious fraud;
  • Migration Act offences relating to people smuggling and the organised harbouring of illegal entrants;
  • certain offences against the Financial Transactions Reporting Act 1988

State Offence with a Federal Aspect

For POCA purposes, the definition of ‘state offence with a federal aspect’ is contained in section 3AA Crimes Act 1914 (Cth).

Broadly, a state offence with a federal aspect is such if, the provision creating the state offence had been enacted by the Parliament of the Commonwealth, instead of by the Parliament of the State, the provision would have been a valid law of the Commonwealth.

Total wealth

The definition of total wealth is relevant for the purposes of Unexplained Wealth Orders.

The total wealth of a person is the sum of all of the values of the property that constitutes the person’s wealth.

Wealth

The definition of wealth is relevant for the purposes of Unexplained Wealth Orders.

Wealth of a person is:

  • property owned; or
  • property that has been under the effective control;
  • property that has been disposed of (whether by sale, gift or otherwise) or consumed;

at any time.

  1. Director of Public Prosecutions v Toro-Martinez (1993) 33 NSWLR 82, 85-86.
  2. The Politics of Proceeds of Crime Legislation, UNSW Law Journal.
  3. Ibid.
  4. Ibid.
  5. Ibid.
  6. ss 243B and 243E.
  7. S 106A.
  8. Still a current statute.
  9. Originally introduced as the Drug Trafficking (Civil Proceedings) Act 1990 (NSW).
  10. S 317 Proceeds of Crime Act 2002 (Cth).
  11. Limited to only seeking forfeiture orders pursuant to s 48 POCA where no restraining order has been sought at the time the application is made; and seeking PPO’s pursuant to s 116 relating to a person’s conviction where no restraining order has been sought at the time the application is made.
  12. Restraining Orders: S 32 Proceeds of Crime Act 2002 (Cth), Forfeiture Orders: S 76 Proceeds of Crime Act 2002 (Cth).
  13. S 180(1) Proceeds of Crime Act 2002 (Cth) & definition of “affairs” in s 338 Proceeds of Crime Act 2002 (Cth).
  14. S 197 Proceeds of Crime Act 2002 (Cth).
  15. S 195 Proceeds of Crime Act 2002 (Cth).
  16. S 196(1) Proceeds of Crime Act 2002 (Cth).
  17. S 197(3)(a) Proceeds of Crime Act 2002 (Cth).
  18. S 197(3)(b) Proceeds of Crime Act 2002 (Cth).
  19. S 198 Proceeds of Crime Act 2002 (Cth).
  20. S 202(5) Proceeds of Crime Act 2002 (Cth).
  21. See above.
  22. S 202(2)(a) Proceeds of Crime Act 2002 (Cth).
  23. Proceeds of Crime Bill 2002 Revised Explanatory Memorandum.
  24. S 206 Proceeds of Crime Act 2002 (Cth).
  25. S 206(2) Proceeds of Crime Act 2002 (Cth).
  26. Criminal Code Act 1995 (Cth) Schedule 1, sections 137.1 and 137.2 as mentioned in s 206(2) Proceeds of Crime Act 2002 (Cth).
  27. S 211 Proceeds of Crime Act 2002 (Cth).
  28. A more expansive list is found in s 213(1) Proceeds of Crime Act 2002 (Cth).
  29. S 218 Proceeds of Crime Act 2002 (Cth).
  30. See discussion of reasonable suspicion at page 13.
  31. S 219(2)(a)(i) Proceeds of Crime Act 2002 (Cth).
  32. S 219(2)(a)(ii) Proceeds of Crime Act 2002 (Cth).
  33. S 219(2)(a)(iii) Proceeds of Crime Act 2002 (Cth).
  34. See discussion of reasonable suspicion at page 13.
  35. Criminal Code Act 1995 (Cth) Schedule 1.
  36. S 224 Proceeds of Crime Act 2002 (Cth).
  37. S 3E Crimes Act 1914 (Cth).
  38. See discussion of reasonable suspicion at page 13.
  39. S 338 Proceeds of Crime Act 2002 (Cth).
  40. S 228(1)(a) Proceeds of Crime Act 2002 (Cth).
  41. S 228(1)(b) Proceeds of Crime Act 2002 (Cth).
  42. S 228(1)(b) Proceeds of Crime Act 2002 (Cth).
  43. S 228(1)(c) Proceeds of Crime Act 2002 (Cth).
  44. Within the meaning of the Crimes Act 1914 (Cth).
  45. S 228(1)(d)(iii) Proceeds of Crime Act 2002 (Cth).
  46. S 228(1)(e) Proceeds of Crime Act 2002 (Cth).
  47. S 228(1)(da) Proceeds of Crime Act 2002 (Cth).
  48. S 338 Proceeds of Crime Act 2002 (Cth).
  49. AFP Annual Report 2016-17, Page 203: For Financial Year 2017, there are two matters being investigated for the purposes of Part 2-6 POCA, and there has been two applications for restraining orders under section 20A and two preliminary unexplained wealth orders.
  50. S 266A Proceeds of Crime Act 2002 (Cth).
  51. S 39 Proceeds of Crime Act 2002 (Cth).
  52. S 39(ca) Proceeds of Crime Act 2002 (Cth).
  53. S 39(d) Proceeds of Crime Act 2002 (Cth).
  54. S 39(da) Proceeds of Crime Act 2002 (Cth).
  55. S 225 Proceeds of Crime Act 2002 (Cth).
  56. S 213 Proceeds of Crime Act 2002 (Cth).
  57. S 219 Proceeds of Crime Act 2002 (Cth).
  58. S 202 Proceeds of Crime Act 2002 (Cth).
  59. S 180 Proceeds of Crime Act 2002 (Cth).
  60. Criminal Code Act 1995 (Cth) Schedule 1.
  61. S 266A(4)(a) Proceeds of Crime Act 2002 (Cth).
  62. S 266A(4)(b) Proceeds of Crime Act 2002 (Cth).
  63. S 266A(4)(c) Proceeds of Crime Act 2002 (Cth).
  64. S 266A(4)(d) Proceeds of Crime Act 2002 (Cth).
  65. S 266A(4)(e) Proceeds of Crime Act 2002 (Cth).
  66. S 15B(1) Proceeds of Crime Act 2002 (Cth).
  67. S 15N(3) Proceeds of Crime Act 2002 (Cth).
  68. Briginshaw v Briginshaw (1938) 60 CLR 336.
  69. Hussein v Chong Fook Kam (1970) AC 942, 948.
  70. George v Rockett (1990) 170 CLR 104, 112.
  71. Williams v Keelty (2001) 184 ALR 411, [172].
  72. Williams v Keelty (2001) 184 ALR 411, [166]-[167].
  73. Walsh v Loughman [1991] 2 VR 351, 357; Director of Public Prosecutions (SA) v Tregenza [2002] SASC 414.
  74. Defined in S 338 Proceeds of Crime Act 2002 (Cth): ‘Indictable offence means an offence against a law of the Commonwealth, or a non-governing Territory, that may be dealt with as an indictable offence (even if it may also be dealt with as a summary offence in some circumstances).’ S 4G Crimes Act 1914 (Cth): ‘Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears.’
  75. See S 17(3) Proceeds of Crime Act 2002 (Cth).
  76. S 17(2)(a) Proceeds of Crime Act 2002 (Cth).
  77. S 17(6) Proceeds of Crime Act 2002 (Cth).
  78. Griffiths v R (1977) 137 CLR 293, 336; Maxwell v R (1996) 184 CLR 501, 507.
  79. R v Tonks and Goss [1963] V.R. 121, 127-128.
  80. DPP v McCoid [1988] VR 982.
  81. Della Patrona v DPP (Cth) (1995) 38 NSWLR 257, 315; Dpp (Cth) v Elias Helou [2003] NSWCA 301, 579-580.
  82. Serious Offence is defined in s 338 Proceeds of Crime Act 2002 (Cth).
  83. See S 18(3) Proceeds of Crime Act 2002 (Cth).
  84. S 18(2)(a) Proceeds of Crime Act 2002 (Cth).
  85. S 18(6) Proceeds of Crime Act 2002 (Cth).
  86. See ss 19(1)(d)(i) & 338 Proceeds of Crime Act 2002 (Cth) – proceeds of a terrorism offence, a foreign indictable offence, or an indictable offence of a Commonwealth concern.
  87. See ss 329 & 330 Proceeds of Crime Act 2002 (Cth) for a comprehensive definition of proceeds.
  88. See ss 329 & 330 Proceeds of Crime Act 2002 (Cth) for a comprehensive definition of instrument.
  89. S 19(1)(d)(i) – Or proceeds of a terrorism offence, or a foreign indictable offence, or an indictable offence of Commonwealth concern.
  90. Defined in S 153 Proceeds of Crime Act 2002 (Cth).
  91. S 153(1)(a) Proceeds of Crime Act 2002 (Cth) – or a foreign indictable offence.
  92. S 153(2) Proceeds of Crime Act 2002 (Cth).
  93. Or a foreign indictable offence – s 20(1)(d) Proceeds of Crime Act 2002 (Cth).
  94. See S 20(3) Proceeds of Crime Act 2002 (Cth).
  95. S 20(2)(a) Proceeds of Crime Act 2002 (Cth).
  96. S 20(7) Proceeds of Crime Act 2002 (Cth).
  97. Ss 338 & 179G(2) Proceeds of Crime Act 2002 (Cth).
  98. SS 338 & 179G(1) Proceeds of Crime Act 2002 (Cth).
  99. Ss 338 & 336A Proceeds of Crime Act 2002 (Cth).
  100. See S 20A(3) Proceeds of Crime Act 2002 (Cth).
  101. Or a foreign indictable offence or a State offence that has a federal aspect – s 20A(1)(g)(i) Proceeds of Crime Act 2002 (Cth).
  102. Or a foreign indictable offence or a State offence that has a federal aspect – s 20A(1)(g)(ii) Proceeds of Crime Act 2002 (Cth).
  103. S 20A(2)(a) Proceeds of Crime Act 2002 (Cth).
  104. S 20A(6) Proceeds of Crime Act 2002 (Cth).
  105. S 26(4) Proceeds of Crime Act 2002 (Cth).
  106. S 24(1) Proceeds of Crime Act 2002 (Cth).
  107. S 24(2) Proceeds of Crime Act 2002 (Cth).
  108. “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]).
  109. Broadly defined – see s 338 Proceeds of Crime Act 2002 (Cth).
  110. S 24(3) Proceeds of Crime Act 2002 (Cth).
  111. S 24A(1) Proceeds of Crime Act 2002 (Cth).
  112. S 29 Proceeds of Crime Act 2002 (Cth).
  113. S 31 Proceeds of Crime Act 2002 (Cth).
  114. See para xxx.
  115. S 29(4) Proceeds of Crime Act 2002 (Cth).
  116. S 30 Proceeds of Crime Act 2002 (Cth).
  117. S 42(1) Proceeds of Crime Act 2002 (Cth).
  118. S 42(1A)(a) Proceeds of Crime Act 2002 (Cth).
  119. S 42(1A)(b) Proceeds of Crime Act 2002 (Cth).
  120. “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]).
  121. S 42(2) Proceeds of Crime Act 2002 (Cth).
  122. S 42(3) Proceeds of Crime Act 2002 (Cth).
  123. S 42(5) Proceeds of Crime Act 2002 (Cth).
  124. S 42(5)(a) Proceeds of Crime Act 2002 (Cth); Commonwealth Director of Public Prosecutions v Tan [2004] NSWSC 856, [2]; Director of Public Prosecutions (Cth) – Re Section 19 of the Proceeds of Crime Act 2002 Re Funds in a bank account Re Sunshine Worldwide Holdings Ltd and South East Group Ltd [2005] NSWSC 117, [53].
  125. S 39 Proceeds of Crime Act 2002 (Cth).
  126. S 39(1)(ca) Proceeds of Crime Act 2002 (Cth).
  127. S 39(1)(d) Proceeds of Crime Act 2002 (Cth).
  128. S 39(1)(da) Proceeds of Crime Act 2002 (Cth).
  129. S 39(1)(e) Proceeds of Crime Act 2002 (Cth).
  130. S 39A(1) Proceeds of Crime Act 2002 (Cth).
  131. S 39A(2) Proceeds of Crime Act 2002 (Cth).
  132. Subject to S 266A Proceeds of Crime Act 2002 (Cth) disclosure obligations.
  133. Crimes Legislation Amendment (Serious And Organised Crime) Bill (No. 2) 2009 – Replacement Explanatory Memorandum – Page 51.
  134. Subject to s 39A(2)(a), (b), (c), & (d) Proceeds of Crime Act 2002 (Cth).
  135. Subject to disclosure requirements in s 266A Proceeds of Crime Act 2002 (Cth).
  136. S 39B(1)(a) Proceeds of Crime Act 2002 (Cth).
  137. S 39B(1)(b) Proceeds of Crime Act 2002 (Cth).
  138. S 39B(2) Proceeds of Crime Act 2002 (Cth).
  139. S 39B(4) Proceeds of Crime Act 2002 (Cth).
  140. S 39B(5) Proceeds of Crime Act 2002 (Cth).
  141. S 39B(6) Proceeds of Crime Act 2002 (Cth).
  142. S 59(2) Proceeds of Crime Act 2002 (Cth).
  143. Defined in s 333 Proceeds of Crime Act 2002 (Cth).
  144. S 61 Proceeds of Crime Act 2002 (Cth).
  145. Ss 63 & 334 Proceeds of Crime Act 2002 (Cth).
  146. Proceeds of Crime Bill 2002 Revised Explanatory Memorandum.
  147. The 6 months requirement can be waived if the order is made by consent, see s 316 POCA.
  148. Serious Offence is defined in s 338 Proceeds of Crime Act 2002 (Cth).
  149. Noting Briginshaw.
  150. Proceeds of Crime Bill 2002 Revised Explanatory Memorandum.
  151. S 47(3) Proceeds of Crime Act 2002 (Cth).
  152. See the definitions of ‘responsible authority’ and ‘proceeds of crime authority’ in section 338 Proceeds of Crime Act 2002 (Cth).
  153. CDPP, Proceeds of Crime Actions < https://www.cdpp.gov.au/sites/g/…/IASA_Proceeds%20of%20Crime%20Actions.docx>.
  154. What constitutes being ‘convicted’ for the purposes of POCA is ambiguous. A conservative interpretation is that conviction for POCA purposes occurs upon sentencing, but consideration of the term ‘conviction’ for the purposes of other asset confiscation legislation has required a lesser threshold, for example when a guilty plea is accepted (DPP (Cth) v Elias Helou [2003] NSWCA 301).
  155. S 1(c) Proceeds of Crime Act 2002 (Cth).
  156. S 2(d) Proceeds of Crime Act 2002 (Cth).
  157. S 48(1) Proceeds of Crime Act 2002 (Cth).
  158. S 48(2)(c) Proceeds of Crime Act 2002 (Cth).
  159. S 48(2) Proceeds of Crime Act 2002 (Cth).
  160. Proceeds of Crime Bill 2002 Revised Explanatory Memorandum.
  161. S 48(3) Proceeds of Crime Act 2002 (Cth).
  162. The 6 months requirement can be waived if the order is made by consent, see s 316 POCA.
  163. Or the property is proceeds of one or more foreign indictable offences; or the property is proceeds of one or more indictable offences of Commonwealth concern.
  164. As defined in section 338 Proceeds of Crime Act 2002 (Cth).
  165. Defined in section 333 Proceeds of Crime Act 2002 (Cth), from section 338 Proceeds of Crime Act 2002 (Cth).
  166. S 92A Proceeds of Crime Act 2002 (Cth).
  167. 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).
  168. S 94(2) Proceeds of Crime Act 2002 (Cth).
  169. “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]).
  170. S 94(5) Proceeds of Crime Act 2002 (Cth).
  171. S 94(6) Proceeds of Crime Act 2002 (Cth).
  172. Discussed at xxx.
  173. S 104(2)-(3) Proceeds of Crime Act 2002 (Cth).
  174. “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]).
  175. S 94(5) Proceeds of Crime Act 2002 (Cth).
  176. S 94(6) Proceeds of Crime Act 2002 (Cth).
  177. Discussed at xxx.
  178. S 94A(2) Proceeds of Crime Act 2002 (Cth).
  179. S 94A(3) Proceeds of Crime Act 2002 (Cth).
  180. See sections 94A(4) and (5) Proceeds of Crime Act 2002 (Cth).
  181. “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]).
  182. S 94(5) Proceeds of Crime Act 2002 (Cth).
  183. S 94(6) Proceeds of Crime Act 2002 (Cth).
  184. Discussed at xxx.
  185. S 69 Proceeds of Crime Act 2002 (Cth).
  186. S 70(1)(b) Proceeds of Crime Act 2002 (Cth).
  187. Being the Minister for Home Affairs – Administrative Arrangements Order 19/04/18.
  188. Expansive definition in s 332 Proceeds of Crime Act 2002 (Cth) – referred from s 338 Proceeds of Crime Act 2002 (Cth).
  189. S 80 Proceeds of Crime Act 2002 (Cth).
  190. Technically, it can also be the AFP but the CDPP has carriage of section 48 forfeiture orders pursuant to an agreement between the CDPP and the AFP (CDPP, Proceeds of Crime Actions < https://www.cdpp.gov.au/sites/g/…/IASA_Proceeds%20of%20Crime%20Actions.docx>).
  191. S 81 Proceeds of Crime Act 2002 (Cth).
  192. S 82 Proceeds of Crime Act 2002 (Cth).
  193. S 84(1) Proceeds of Crime Act 2002 (Cth).
  194. S 47(1)(b) Proceeds of Crime Act 2002 (Cth).
  195. S 49(1)(b) Proceeds of Crime Act 2002 (Cth).
  196. S 84(2) Proceeds of Crime Act 2002 (Cth).
  197. S 85(1) Proceeds of Crime Act 2002 (Cth).
  198. S 85(2)(a) Proceeds of Crime Act 2002 (Cth).
  199. S 85(2)(b) Proceeds of Crime Act 2002 (Cth).
  200. S 85(3) Proceeds of Crime Act 2002 (Cth).
  201. Expansive definition in s 332 Proceeds of Crime Act 2002 (Cth) – referred from s 338 Proceeds of Crime Act 2002 (Cth).
  202. S 82 Proceeds of Crime Act 2002 (Cth).
  203. S 47(1)(b) Proceeds of Crime Act 2002 (Cth).
  204. S 49(1)(b) Proceeds of Crime Act 2002 (Cth).
  205. S 110(2) Proceeds of Crime Act 2002 (Cth).
  206. S 111(1) Proceeds of Crime Act 2002 (Cth).
  207. S 111(2)(a) Proceeds of Crime Act 2002 (Cth).
  208. S 111(2)(b) Proceeds of Crime Act 2002 (Cth).
  209. S 111(3) Proceeds of Crime Act 2002 (Cth).
  210. S 57 Proceeds of Crime Act 2002 (Cth).
  211. Being the Minister for Home Affairs – Administrative Arrangements Order 19/04/18.
  212. S 90(1)(d) Proceeds of Crime Act 2002 (Cth).
  213. S 103 Proceeds of Crime Act 2002 (Cth).
  214. Being the Minister for Home Affairs – Administrative Arrangements Order 19/04/18.
  215. S 105(1)(d) Proceeds of Crime Act 2002 (Cth).
  216. S 73(1)(c)(i) Proceeds of Crime Act 2002 (Cth).
  217. S 73(1)(c)(ii) Proceeds of Crime Act 2002 (Cth).
  218. S 73(1)(d) Proceeds of Crime Act 2002 (Cth).
  219. S 73(1)(a) Proceeds of Crime Act 2002 (Cth).
  220. S 73(1)(b) Proceeds of Crime Act 2002 (Cth).
  221. S 74(1) Proceeds of Crime Act 2002 (Cth).
  222. S 74(3) Proceeds of Crime Act 2002 (Cth).
  223. S 74(4) Proceeds of Crime Act 2002 (Cth).
  224. “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]).
  225. S 75(1) Proceeds of Crime Act 2002 (Cth).
  226. For section 47 and 49 forfeiture orders.
  227. For section 48 forfeiture orders.
  228. S 75(3) Proceeds of Crime Act 2002 (Cth).
  229. Discussed at xxx.
  230. S 77(1) Proceeds of Crime Act 2002 (Cth).
  231. S 77(1)(a) Proceeds of Crime Act 2002 (Cth).
  232. S 77(1)(b) Proceeds of Crime Act 2002 (Cth).
  233. S 77(1)(c) Proceeds of Crime Act 2002 (Cth).
  234. S 77(1)(d) Proceeds of Crime Act 2002 (Cth).
  235. S 77(1)(c) Proceeds of Crime Act 2002 (Cth).
  236. S 70(1)(b) Proceeds of Crime Act 2002 (Cth).
  237. Proceeds of Crime Bill 2002 Revised Explanatory Memorandum.
  238. S 78(1) Proceeds of Crime Act 2002 (Cth).
  239. S 78(3) Proceeds of Crime Act 2002 (Cth).
  240. S 78(4) Proceeds of Crime Act 2002 (Cth).
  241. “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]).
  242. S 79(1) Proceeds of Crime Act 2002 (Cth).
  243. For section 47 and 49 forfeiture orders.
  244. For section 48 forfeiture orders.
  245. S 79(3) Proceeds of Crime Act 2002 (Cth).
  246. Discussed at xxx.
  247. Includes service or advantage – see s 338 Proceeds of Crime Act 2002 (Cth).
  248. Refer to glossary, ss 338 & 337 Proceeds of Crime Act 2002 (Cth).
  249. S 116(4) Proceeds of Crime Act 2002 (Cth).
  250. See ss 117 – 118 Proceeds of Crime Act 2002 (Cth).
  251. Defined in section 333 Proceeds of Crime Act 2002 (Cth), from section 338 Proceeds of Crime Act 2002 (Cth).
  252. Any other offence must have been committed within the period of 6 years preceding the application for a restraining order, or otherwise 6 years preceding the application for a PPO, or during the period after an application for a restraining order or PPO was made. No time limits apply if the offence was a ‘terrorism offence’. ‘Terrorism offence’ is defined at s 338 Proceeds of Crime Act 2002 (Cth).
  253. Means an act or omission that constitutes an offence against a law of the Commonwealth, State or Territory or of a foreign country – see s 338 Proceeds of Crime Act 2002 (Cth).
  254. S 122(1) (a)-(b) Proceeds of Crime Act 2002 (Cth).
  255. S 122(1)(d) Proceeds of Crime Act 2002 (Cth).
  256. S 122(1)(e) Proceeds of Crime Act 2002 (Cth).
  257. Defined in s 338 Proceeds of Crime Act 2002 (Cth).
  258. S 122(2) Proceeds of Crime Act 2002 (Cth).
  259. S 122(3)(a) Proceeds of Crime Act 2002 (Cth).
  260. S 122(3)(b) Proceeds of Crime Act 2002 (Cth).
  261. S 123(1) Proceeds of Crime Act 2002 (Cth).
  262. S 123(2) Proceeds of Crime Act 2002 (Cth).
  263. 6 years preceding the application for a restraining order, or otherwise 6 years preceding the application for a PPO.
  264. See footnote 249.
  265. S 130 Proceeds of Crime Act 2002 (Cth).
  266. S 132 Proceeds of Crime Act 2002 (Cth).
  267. S 133(2) Proceeds of Crime Act 2002 (Cth).
  268. S 133(2A) Proceeds of Crime Act 2002 (Cth).
  269. S 133(3) Proceeds of Crime Act 2002 (Cth).
  270. Defined in section 333 Proceeds of Crime Act 2002 (Cth), from section 338 Proceeds of Crime Act 2002 (Cth).
  271. Defined in section 333 Proceeds of Crime Act 2002 (Cth), from section 338 Proceeds of Crime Act 2002 (Cth).
  272. S 134(6) Proceeds of Crime Act 2002 (Cth).
  273. S 136(1) Proceeds of Crime Act 2002 (Cth).
  274. S 136(2)-(3) Proceeds of Crime Act 2002 (Cth).
  275. S 138(1) Proceeds of Crime Act 2002 (Cth).
  276. S 140(1) Proceeds of Crime Act 2002 (Cth).
  277. S 140(2) Proceeds of Crime Act 2002 (Cth).
  278. S 140(4) Proceeds of Crime Act 2002 (Cth).
  279. See definition in glossary.
  280. S 141(1) Proceeds of Crime Act 2002 (Cth).
  281. Defined in s 338 Proceeds of Crime Act 2002 (Cth).
  282. S 142(1) Proceeds of Crime Act 2002 (Cth).
  283. Defined in s 338 Proceeds of Crime Act 2002 (Cth).
  284. S 142(3)(a) Proceeds of Crime Act 2002 (Cth).
  285. S 116(1)(b)(ii) Proceeds of Crime Act 2002 (Cth).
  286. S 116(1)(b)(i) Proceeds of Crime Act 2002 (Cth).
  287. S 146 Proceeds of Crime Act 2002 (Cth).
  288. S 149 Proceeds of Crime Act 2002 (Cth).
  289. Proceeds of Crime Bill 2002 Revised Explanatory Memorandum.
  290. S 149A Proceeds of Crime Act 2002 (Cth).
  291. S 150 Proceeds of Crime Act 2002 (Cth).
  292. S 152(1)(b) Proceeds of Crime Act 2002 (Cth).
  293. S 152(2)(b) Proceeds of Crime Act 2002 (Cth).
  294. S 152(3) Proceeds of Crime Act 2002 (Cth).
  295. Defined in s 338 Proceeds of Crime Act 2002 (Cth).
  296. Defined in s 338 Proceeds of Crime Act 2002 (Cth).
  297. Defined in s 338 Proceeds of Crime Act 2002 (Cth).
  298. S 153(2)(a) Proceeds of Crime Act 2002 (Cth).
  299. S 153(2)(b) Proceeds of Crime Act 2002 (Cth).
  300. S 153(2)(c) Proceeds of Crime Act 2002 (Cth).
  301. Proceeds of Crime Bill 2002 Revised Explanatory Memorandum.
  302. S 153(3) Proceeds of Crime Act 2002 (Cth).
  303. S 153(3A) Proceeds of Crime Act 2002 (Cth).
  304. S 153(4) Proceeds of Crime Act 2002 (Cth).
  305. S 154(a) Proceeds of Crime Act 2002 (Cth).
  306. S 154(b) Proceeds of Crime Act 2002 (Cth).
  307. S 158(1) Proceeds of Crime Act 2002 (Cth).
  308. S 159 Proceeds of Crime Act 2002 (Cth).
  309. Defined in s 338 Proceeds of Crime Act 2002 (Cth).
  310. Defined in s 338 Proceeds of Crime Act 2002 (Cth).
  311. S 160 Proceeds of Crime Act 2002 (Cth).
  312. S 167(1) Proceeds of Crime Act 2002 (Cth).
  313. S 167(2) Proceeds of Crime Act 2002 (Cth).
  314. S 167(3) Proceeds of Crime Act 2002 (Cth).
  315. See definition in glossary.
  316. S 168(1) Proceeds of Crime Act 2002 (Cth).
  317. Defined in s 338 Proceeds of Crime Act 2002 (Cth).
  318. S 169(1) Proceeds of Crime Act 2002 (Cth).
  319. Defined in s 338 Proceeds of Crime Act 2002 (Cth).
  320. S 170(3)(a) Proceeds of Crime Act 2002 (Cth).
  321. S 173 Proceeds of Crime Act 2002 (Cth).
  322. S 176 Proceeds of Crime Act 2002 (Cth).
  323. S 177 Proceeds of Crime Act 2002 (Cth).
  324. S 178(1) Proceeds of Crime Act 2002 (Cth).
  325. Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth).
  326. S 20A(1)(c) Proceeds of Crime Act 2002 (Cth).
  327. S 20A(1)(d) Proceeds of Crime Act 2002 (Cth).
  328. S 20A(1)(g) Proceeds of Crime Act 2002 (Cth).
  329. S 20A(4)(a) Proceeds of Crime Act 2002 (Cth).
  330. S 20A(4)(b) Proceeds of Crime Act 2002 (Cth).
  331. S 179B(1)(a) Proceeds of Crime Act 2002 (Cth).
  332. S 179B(1)(b) Proceeds of Crime Act 2002 (Cth).
  333. S 179B(1A) Proceeds of Crime Act 2002 (Cth).
  334. S 179B(1) Proceeds of Crime Act 2002 (Cth).
  335. S 179B(4) Proceeds of Crime Act 2002 (Cth).
  336. S 179C(5)(a) Proceeds of Crime Act 2002 (Cth).
  337. S 179C(5)(b) Proceeds of Crime Act 2002 (Cth).
  338. S 179C(5)(c) Proceeds of Crime Act 2002 (Cth).
  339. S 179E(1)(a) Proceeds of Crime Act 2002 (Cth).
  340. S 179E(1)(b) Proceeds of Crime Act 2002 (Cth).
  341. S 179E(2) Proceeds of Crime Act 2002 (Cth).
  342. S 179E(6) Proceeds of Crime Act 2002 (Cth).
  343. S 179E(3) Proceeds of Crime Act 2002 (Cth).
  344. S 179E(4)(a) Proceeds of Crime Act 2002 (Cth).
  345. S 179E(4)(b) Proceeds of Crime Act 2002 (Cth).
  346. S 179G(1)(a) Proceeds of Crime Act 2002 (Cth).
  347. S 179G(1)(b) Proceeds of Crime Act 2002 (Cth).
  348. S 179G(1)(c) Proceeds of Crime Act 2002 (Cth).
  349. S 179J Proceeds of Crime Act 2002 (Cth).
  350. Expansively defined to include a forfeiture order, an interstate forfeiture order, or a foreign forfeiture order.
  351. Expansively defined to include a pecuniary penalty order (PPO), literary proceeds order, an order under section 243B of the Customs Act 1901 (Cth), an interstate pecuniary penalty order, or a foreign pecuniary penalty order.
  352. S 179L(1) Proceeds of Crime Act 2002 (Cth).
  353. S 179L(2) Proceeds of Crime Act 2002 (Cth).
  354. S 179R(1) Proceeds of Crime Act 2002 (Cth).
  355. S 179R(2) Proceeds of Crime Act 2002 (Cth).
  356. S 179R(3) Proceeds of Crime Act 2002 (Cth).
  357. See definition in glossary.
  358. S 179S(1) Proceeds of Crime Act 2002 (Cth).
  359. S 179SA(1) Proceeds of Crime Act 2002 (Cth).
  360. Defined in s 338 Proceeds of Crime Act 2002 (Cth).
  361. S 179SA(3)(a) Proceeds of Crime Act 2002 (Cth).
  362. S 315(1) Proceeds of Crime Act 2002 (Cth).
  363. S 315(2)(a) Proceeds of Crime Act 2002 (Cth).
  364. S 315(2)(b) Proceeds of Crime Act 2002 (Cth).
  365. S 316 Proceeds of Crime Act 2002 (Cth).
  366. As listed in section 47(1)(b) or 49(1)(b) Proceeds of Crime Act 2002 (Cth) respectively.
  367. S 317(1) Proceeds of Crime Act 2002 (Cth).
  368. CDPP, Proceeds of Crime Actions < https://www.cdpp.gov.au/sites/g/…/IASA_Proceeds%20of%20Crime%20Actions.docx>.
  369. S 317(2) Proceeds of Crime Act 2002 (Cth).
  370. Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015 Explanatory Memorandum.
  371. S 319A Proceeds of Crime Act 2002 (Cth).
  372. S 320(a) Proceeds of Crime Act 2002 (Cth).
  373. ‘reflects the value of the property, having regard solely to commercial considerations’ – s 338 Proceeds of Crime Act 2002 (Cth).
  374. Proceeds of Crime Bill 2002 Revised Explanatory Memorandum.
  375. Proceeds of Crime Bill 2002 Revised Explanatory Memorandum.
  376. S 330(2)(a) Proceeds of Crime Act 2002 (Cth).
  377. S 330(2)(b) Proceeds of Crime Act 2002 (Cth).
  378. S 330(2)(c) Proceeds of Crime Act 2002 (Cth).
  379. S 330(2)(d) Proceeds of Crime Act 2002 (Cth).
  380. S 330(5) Proceeds of Crime Act 2002 (Cth).
  381. S 330(1)(a) Proceeds of Crime Act 2002 (Cth).
  382. S 330(1)(b) Proceeds of Crime Act 2002 (Cth).
  383. S 330(1)(c) Proceeds of Crime Act 2002 (Cth).
  384. S 330(1)(d) Proceeds of Crime Act 2002 (Cth).
  385. S 330(4)(a) Proceeds of Crime Act 2002 (Cth).
  386. S 330(4)(ba)(ia) Proceeds of Crime Act 2002 (Cth).
  387. S 330(4)(ba)(i) Proceeds of Crime Act 2002 (Cth).
  388. S 330(4)(ba)(ii) Proceeds of Crime Act 2002 (Cth).
  389. S 330(5) 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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