Confiscation of Criminal Assets Act 2003

Persons charged with or convicted of offences: The Act's primary targets. Conviction forfeiture orders and penalty orders flow from conviction. Automatic forfeiture applies on conviction for serious offences.

Persons not charged or convicted (civil forfeiture): The civil forfeiture provisions (Part 5, Division 5.4) allow forfeiture where a court is satisfied on the balance of probabilities that a person has committed a serious offence, even if they have not been convicted. This is one of the most significant features of the Act.

Third parties holding tainted property: Property may be restrained and forfeited even if not legally owned by the offender. Third parties who hold tainted property (or who have interests in property subject to forfeiture) must apply for an exclusion order (Part 6) to protect their interests. They bear the burden of establishing their exclusion ground.

Persons subject to unexplained wealth orders (Part 7A): Anyone whose accumulated wealth cannot be explained as lawfully acquired. There is no requirement for a specific offence to be proven the court considers whether wealth is derived from serious criminal activity generally.

The ACT Territory: The beneficiary of forfeited property and penalty order amounts, which flow into the Confiscated Assets Trust Fund (Part 10).

Restraining order compliance (s 23): Contravention of a restraining order is an offence. A person must not deal with restrained property in a manner inconsistent with the order.

Information-gathering compliance (Part 12): Persons may be required to produce documents and answer questions under information-gathering notices. Refusal or provision of false information is an offence.

Property management (Part 8): A person whose property is restrained must maintain the property in good condition and not permit its deterioration. The Public Trustee and Guardian manages restrained property.

Affidavit requirements for restraining order applications: Applications for restraining orders must be supported by affidavits setting out specified matters (sections 28, 29, 29A).

Courts restraining orders (ss 30–32A): Courts may make restraining orders over any property. No specific offence needs to be identified for unexplained wealth restraining orders (section 32A). Orders may be made without notice in urgent cases.

Courts automatic forfeiture orders (ss 58–61): On conviction of a serious offence, restrained property is automatically forfeited by operation of the Act. The court may make a declaration confirming the automatic forfeiture.

Courts civil forfeiture orders (ss 65–71): Available where a court is satisfied on the balance of probabilities that the person has committed a serious offence no criminal conviction required. The standard is the civil standard.

Courts penalty orders (ss 82–97): On conviction for an ordinary offence or commission of a serious offence (on balance of probabilities), a court may make a penalty order for the value of the benefits derived. Presumptions about value apply under section 91 (ordinary offences) and section 92 (serious offences).

Courts unexplained wealth orders (ss 98A–98F): On application by the DPP, a court may make an unexplained wealth order for the value of the person's unexplained wealth unless the person can show the wealth is not derived from serious criminal activity.

Courts exclusion orders (ss 72–78): Third parties may apply for orders excluding their property from forfeiture. For serious offences, the court must be satisfied that the property is not tainted and the applicant is not a nominal owner with no effective control. For unexplained wealth forfeiture, the test is different.

Public Trustee and Guardian: Manages restrained and forfeited property, sells property under court direction, and administers penalty charges.

DPP search warrants (Part 13): The DPP may apply for search warrants to obtain evidence of relevant offences, tainted property, or benefits derived from crime.

Contravening a restraining order (s 23): An offence. Maximum penalty: 500 penalty units, imprisonment for 5 years, or both.

Setting aside dealings with restrained property (s 24): A court may set aside a dealing with restrained property as if it had not occurred. This protects the value of the restrained property for forfeiture purposes.

Disclosure offences restraining order proceedings (s 36): An offence to disclose the existence of a restraining order application before the order is made (in certain circumstances). Maximum penalty: 200 penalty units, 2 years imprisonment, or both.

Disclosure offences civil forfeiture proceedings (s 70): Similar offences apply during civil forfeiture order proceedings.

Information-gathering offences (Part 12): Refusal to provide information, or provision of false information, to authorised persons is an offence.

Penalty orders (ss 82–97): Enforced as judgment debts. A penalty charge may be created over restrained property to secure payment (section 94).

Restraining order process:

1. DPP applies to court by affidavit (sections 28–29A).
2. Court may make order without notice in appropriate cases.
3. Notice of making a restraining order must be given (section 34).
4. Restraining orders may be time-limited depending on the type of proceeding (sections 41–48A).

Conviction pathway:

1. Charge and investigation (with information-gathering and search warrants from Parts 12–13 as needed).
2. Restraining order made.
3. Person convicted of relevant offence.
4. Conviction forfeiture order application: any time after conviction (section 53).
5. For serious offences: automatic forfeiture operates by force of the Act (section 58). Court makes declaration confirming forfeiture.
6. Penalty order: may be made at sentencing or separately (section 83).

Civil forfeiture pathway (no conviction required):

1. Restraining order made.
2. DPP applies for civil forfeiture order (section 66): court must be satisfied on balance of probabilities that person committed a serious offence.
3. Third parties apply for exclusion orders within 28 days or as allowed by court (section 75).

Unexplained wealth pathway:

1. DPP applies for unexplained wealth restraining order (section 26A): court must be satisfied there are reasonable grounds to suspect the person has unexplained wealth derived from serious criminal activity.
2. DPP applies for unexplained wealth order (section 98B): court must be satisfied the person has unexplained wealth (i.e., wealth whose lawful provenance cannot be established to the court's satisfaction).

Criminal Code 2002 (ACT): Section 8 confirms the Criminal Code applies to offences under this Act. The Criminal Code's fault element and general criminal responsibility principles apply.

Proceeds of Crime Act 2002 (Cth): The Commonwealth Act applies to proceeds of Commonwealth offences. The ACT Act applies to ACT offences (and potentially Territory offences generally). There is overlap where a person commits both a Commonwealth and ACT offence.

Legislation Act 2001 (ACT): Section 7 (notes) and the Dictionary provisions operate in accordance with the Legislation Act 2001.

Public Trustee and Guardian Act 1985 (ACT): The Public Trustee and Guardian administers restrained and forfeited property under Part 8.

Interstate confiscation regimes: Part 11 provides for interstate restraining orders and other orders to be registered and enforced in the ACT. Comparable regimes in NSW, Victoria, Queensland and other jurisdictions may affect the same person and property.

Property can be forfeited even where the person is cleared. The civil forfeiture provisions (sections 65–71) operate on the civil standard. A person who is acquitted of a serious offence because the prosecution failed to prove the charge beyond reasonable doubt may still be subject to a civil forfeiture order if the court is satisfied on the balance of probabilities that the offence was committed.

Third parties must act quickly. Exclusion order applications under Part 6 must be made within 28 days of the forfeiture order (or as allowed by the court under section 75). Missing this window may result in permanent loss of legitimately owned property.

Automatic forfeiture operates without a further order. On conviction for a serious offence, all restrained property is forfeited by the operation of the Act itself (section 58) no further court order is required (though a declaration confirming forfeiture under section 59 may be sought). This is a major practical consequence of the "serious offence" classification.

The unexplained wealth burden is reversed. Under section 98B, the applicant (DPP) establishes the amount of the person's wealth; the court then makes the order unless the person satisfies the court that all or part of the wealth is not derived from serious criminal activity. Persons who cannot explain the provenance of assets (even if those assets are in fact legitimate) may be unable to discharge this burden.

Disclosure restrictions apply before restraining order applications are heard. Section 36 creates offences relating to disclosure of the existence of restraining order applications before they are determined. Practitioners advising clients need to be careful not to tip off third parties in a way that might allow tainted property to be dissipated.

Scenario 1: Automatic forfeiture on serious offence conviction A person is convicted in the ACT Supreme Court of importing a commercial quantity of drugs a serious offence. Prior to conviction, their house, car and bank accounts were restrained under a restraining order. On conviction, all restrained property is automatically forfeited to the Territory under section 58. The DPP applies for a court declaration under section 59 confirming the forfeiture. The person's spouse, who contributed to the mortgage on the house using their own legitimate earnings, must apply for an exclusion order under Part 6 within 28 days to recover their interest.

Scenario 2: Civil forfeiture without conviction A person is charged with a serious fraud. During the trial, they abscond. Under section 16, they are taken to have "absconded" and the DPP may apply under section 66 for a civil forfeiture order on the basis that, on the balance of probabilities, the person committed the fraud. The court does not need to be satisfied beyond reasonable doubt.

Scenario 3: Unexplained wealth The AFP and ACT Policing investigate a property developer who appears to have accumulated $3 million in assets over 3 years despite a modest declared income. The DPP applies for an unexplained wealth restraining order (section 26A) and then an unexplained wealth order (section 98B). The developer must satisfy the court that their wealth is not derived from serious criminal activity. If they cannot do so, the court orders them to pay the Territory the assessed value of the unexplained wealth.