What it does
The Confiscation Act 1997 establishes a comprehensive regime for depriving persons of the proceeds and instruments of crime through a combination of criminal and civil mechanisms. Its core purposes are set out in s.1: to forfeit proceeds of certain offences (whatever form they take), provide for automatic forfeiture of restrained property upon conviction of scheduled offences, enable civil forfeiture of tainted property linked to Schedule 2 offences, forfeit property of those unable to prove lawful acquisition (s.1(da)), impose debts and forfeit property where wealth cannot be shown to be lawfully acquired (s.1(db) inserted by No. 26/2024 s. 3), freeze assets, destroy illegal goods, enforce orders, preserve assets for victim restitution or compensation (s.1(h)), and support related sentencing reforms.
At its heart, the Act operates by first restraining property to prevent dissipation (Part 2 for conviction-based restraining orders, Part 2A for freezing orders on accounts, Part 4 Division 1 for civil forfeiture restraining orders, and Part 4A Division 1 for unexplained wealth restraining orders). Section 14 defines a restraining order as one prohibiting disposal or dealing with specified property except as permitted. Similar definitions apply to civil forfeiture restraining orders (s.36H) and unexplained wealth restraining orders (s.40C). These orders can cover property in which the accused has an interest (s.10), property under their effective control (s.9), or derived property (ss.7A–7B, distinguishing civil forfeiture/unexplained wealth cases from others).
Forfeiture follows in multiple forms. Division 1 of Part 3 allows court-ordered forfeiture of tainted property upon conviction of a Schedule 1 offence (s.32 application, s.33 determination). Automatic forfeiture occurs under s.35 for restrained property upon conviction of a Schedule 2 offence (after 60 days, subject to exclusion applications under s.20). Division 4 of Part 3 provides for automatic forfeiture of restrained property upon a person being declared a serious drug offender under the Sentencing Act 1991 (s.36GA). Civil forfeiture under Part 4 Division 2 permits forfeiture of restrained tainted property without conviction (s.37 application, s.38 determination on the civil standard per s.132). Unexplained wealth forfeiture under s.40ZA or s.40ZAB follows unexplained wealth restraining orders (s.40I or s.40IA) where property is not shown to be lawfully acquired (s.40G) or where wealth exceeds lawfully acquired wealth (s.40ZAAC assessment, introduced by No. 26/2024 s. 17).