Crime (Confiscation of Profits) Act 1993

The primary targets are persons convicted of, charged with, or suspected of serious offences (defined in s.4(1) as indictable offences under Tasmanian law or equivalent interstate, Commonwealth or foreign offences). “Convicted” is given an extended meaning in s.5 to include findings of guilt without conviction, offences taken into account on sentence, and absconding (s.6). Section 5A further permits a person to be treated as convicted where they have been convicted of a related offence and derived literary proceeds.

Associates and third parties are also directly affected. Section 8 permits the court to treat property subject to the effective control of a defendant as available to satisfy a pecuniary penalty order or unexplained wealth liability. “Effective control” is deliberately broad: it includes property held by companies, trusts or family members where the defendant can direct its use or enjoyment (s.8(2)). Section 23 expressly allows the corporate veil to be lifted for assessment purposes.

Innocent third parties who acquire an interest in tainted property in good faith, for sufficient consideration and without knowledge or reasonable suspicion that the property was tainted, may obtain relief under s.18(5). The section requires the applicant to prove they were not involved in the offence and acquired their interest before the offence or without notice. The court may order transfer of the interest or payment of its value. Similar third-party protections exist in the unexplained wealth regime (ss.170–172).

Financial institutions are subject to onerous obligations. Production orders (s.49), monitoring orders (s.56) and notices under ss.87–88 compel banks to identify accounts, provide transaction histories, and report suspected activity. Breach attracts fines up to 5,000 penalty units (s.87(5)). Confidentiality obligations in s.57 prohibit disclosure of monitoring orders except to specified persons, with heavy penalties (up to 10 years’ imprisonment for individuals).

The Public Trustee is central to the administration of restrained and forfeited property (ss.26(2)(b), 31, 160). The office must manage, realise and distribute assets, and is protected by limitations on personal liability (s.36) while entitled to prescribed fees (s.37). The DPP and authorised officers (including police) are the moving parties for all applications (s.11, s.26, s.49, s.91, s.96, s.102, s.104, s.117, s.141, s.150, s.152).

Victims of crime indirectly benefit: funds recovered are paid into the Crime (Confiscation of Profits) Account (s.79) and may be used for victim compensation via the Criminal Injuries Compensation Fund (s.79(7)). The Act therefore affects the broader community by reallocating criminal profits to public purposes.

Finally, the unexplained wealth provisions in Part 9 cast the net widest. Any person whose wealth exceeds what can be lawfully explained may be examined (s.92), required to produce documents (s.97), subjected to monitoring orders (s.103), and have assets forfeited without proof of a specific offence (s.142(2), s.152). The presumption in s.85 that wealth is unlawful unless the respondent proves otherwise fundamentally alters the traditional burden of proof.

Duties fall heaviest on persons whose property is restrained or who are subject to unexplained wealth proceedings. A person served with a wealth-restraining order must file a statutory declaration identifying any other interested parties (s.123(1)–(2)); failure is an offence punishable by 2,000 penalty units or two years’ imprisonment. Owners of restrained property must comply with examination orders (s.94(1)) and document production orders (s.99(1)), on pain of imprisonment and loss of rights to object to restraint (s.94(2)). Dealing with restrained property is prohibited (s.132(1)) and attracts up to five years’ imprisonment; the prohibition extends to indirect benefits (s.7).

Financial organisations owe positive duties to respond to notices under ss.87 and 88 within seven days (or longer if specified), to monitor accounts (s.56), and to refrain from tipping off (s.57). Breach carries corporate fines of up to 5,000 penalty units. The Public Trustee must manage restrained and forfeited property prudently (s.160, s.163), may appoint agents (s.168), and must account for funds through the common fund (s.189).

The DPP’s duties include giving notice of applications (ss.12, 28, 29, 122), providing undertakings as to damages where required (s.27(7)–(8)), and ensuring that third parties are notified when additional property is brought into an application (s.13(3)). Authorised officers must act on reasonable grounds (ss.27(1), 40(1), 49(2), 53(1)) and are subject to the standard of proof on the balance of probabilities for most factual findings (s.71).

Rights are conferred principally on third parties and on respondents who can prove legitimate acquisition. A person claiming an interest in property the subject of a forfeiture application may apply under s.18(1) for a declaration that their interest is not forfeited; the court must grant relief if the applicant proves they were not involved in the offence, acquired the interest in good faith for sufficient consideration, and did so before the offence or without knowledge or reasonable suspicion (s.18(5)). Parallel rights exist under the unexplained wealth regime (ss.170–172).

Respondents may object to a wealth-restraining order within 28 days of service (or later if they first become aware of the order—s.135). The Supreme Court must set the order aside to the extent that the respondent proves, on the balance of probabilities, that they do not own or effectively control the property (s.137(2)). A respondent may also apply to vary a restraining order to permit payment of reasonable living and business expenses (s.26(3)), although restrained property cannot be used for legal costs (s.193(1)).

Convicted persons retain appeal rights. A forfeiture or pecuniary penalty order may be appealed as if it were part of the sentence (s.72(1)–(2)). Discharge of orders occurs automatically if the underlying conviction is quashed (ss.19(2), 24(1)). Interstate orders are subject to cancellation of registration where registration was improperly obtained or the order is no longer enforceable in the issuing jurisdiction (s.63, s.178).

The Act expressly preserves the privilege against self-incrimination in limited respects: answers given under examination orders or production orders are inadmissible in criminal proceedings other than proceedings for false testimony or falsity of a statement (ss.30(4), (6), 49(14), 99(5)). However, the privilege does not excuse compliance with the order itself (ss.30(3), (5), 49(13), 99(4)).

Penalties are graduated and reflect the Act’s dual civil–criminal character. Contravention of a restraining order (s.34(1)) carries 500 penalty units for a corporation or 100 penalty units/five years’ imprisonment for an individual. Failure to comply with a production order (s.51) or document production order (s.99(1)) is punishable by 1,000 penalty units or five years’ imprisonment. Monitoring-order breaches attract 1,000 penalty units for the institution and up to 200 penalty units/10 years for individuals who disclose the order (s.57(3)). Obstruction of the Public Trustee (s.35) or of persons executing search warrants (ss.47, 55, 201) is punishable by 100 penalty units/20 penalty units or two years’ imprisonment.

Money-laundering offences are indictable and attract up to 20 years’ imprisonment for dealing with proceeds of crime knowing they are such and intending to conceal that fact (s.66A(1)). Lesser mental states attract 15, 10 or five years (ss.66A(2)–(4)). Alternative verdicts are available (s.66D).

Enforcement of pecuniary penalty orders and unexplained wealth liabilities occurs primarily through the Monetary Penalties Enforcement Act 2005. A pecuniary penalty order is taken to be a fine enforceable under that Act (s.21(4)). If the amount is deemed uncollectable, it becomes a civil debt (s.21(5)). Unexplained wealth liabilities not paid within the time specified in the declaration (s.145(1)) may be referred to the Monetary Penalties Enforcement unit as if they were a court-imposed fine (s.145(2)).

Restraining orders are enforced by the Public Trustee taking custody (s.26(2)(b)), registration on title registers (ss.32–33, 128), and criminal sanctions for breach. Forfeiture orders vest property in the State (s.17(1)), which may then take possession (s.17(1)(e)) and sell or deal with it after the appeal period (s.17(3)). Charges arise automatically on restrained property to secure pecuniary penalty orders (s.32(1)) and rank ahead of all subsequent encumbrances (s.32(3)(b)).

The Crime (Confiscation of Profits) Account (s.79(2)) receives all forfeited money and proceeds. The Treasurer, on the advice of the Attorney-General, may authorise payments for third-party interests (s.18(5)), compensation on discharge of orders (s.19), undertakings as to damages (s.27(7)), equitable sharing, and prescribed purposes (s.79(5)). If the Account is insufficient to meet undertakings or other statutory payments (other than Part 9 liabilities), the deficiency is paid from the Public Account without further appropriation (s.79(6)).

The Act is expressly complementary. Section 77 provides that nothing in the Act restricts the operation of any other Tasmanian law providing for forfeiture or pecuniary penalties, nor the State’s other remedies. It therefore sits alongside the Misuse of Drugs Act 2001 (controlled substances are relevant to benefit assessment—s.22(1)), the Sentencing Act 1997, and the Criminal Code.

Interstate and Commonwealth orders are recognised through the Service and Execution of Process Act 1992 (Cth) and the Act’s own registration provisions (Part 6). A registered interstate forfeiture order is treated as if made under s.16(1) (s.59(1)); a registered interstate restraining order is treated as made under s.26(2) (s.60(1)). Corresponding laws are declared by regulation (s.4(1)).

The Monetary Penalties Enforcement Act 2005 supplies the enforcement machinery for unpaid pecuniary penalty orders and unexplained wealth liabilities (ss.21(4)–(5), 145(2)). The Land Titles Act 1980 governs registration of restraining orders, forfeiture orders and caveats (ss.17(1)(b), 32(5), 33(2), 128, 154, 179). The Public Trustee Act 1930 supplies the statutory framework for the Public Trustee’s powers, fees and indemnities (ss.36–37, 160, 189).

The Director of Public Prosecutions Act 1973 establishes the office that exercises most prosecutorial functions under the Act (definition of “DPP” in s.4(1)). The Acts Interpretation Act 1931 supplies default rules for construction, although the Act displaces many criminal-law presumptions (s.183(3)).

Part 9 interacts with the common law of trusts and corporate law through the concepts of effective control (s.81) and lifting the corporate veil (s.23). It also engages the Family Law Act 1975 (Cth) and State family law legislation: transfers pursuant to family court orders are treated as transfers for value (s.192(b)), potentially protecting them from forfeiture if other criteria are met.

Money-laundering offences (Part 6A) overlap with Commonwealth Proceeds of Crime Act 2002 (Cth) and Criminal Code (Cth) provisions; the Act expressly disapplies double-recovery where a pecuniary penalty has already been imposed under Commonwealth law (s.22(5)).

The most significant recent change was the insertion of Part 9 by the Crime (Confiscation of Profits) Amendment Act 2013. Prior to 2013 the Act required a conviction or charge for a serious offence before assets could be restrained or forfeited. Part 9 introduced a civil unexplained-wealth regime that dispenses with the need to prove a specific offence. The reversal of onus (s.85), the broad definition of wealth (s.138), and the power to reach assets given away or subject to effective control (ss.81, 151) were justified by the legislature as necessary to combat sophisticated money-laundering and to prevent criminals from insulating assets through complex corporate and trust structures.

The 2007 amendments inserted Part 6A (money-laundering offences) and expanded the definition of “instrument of crime” (s.4(1)). These changes responded to recommendations of national organised-crime forums that States should criminalise dealing with proceeds independently of the predicate offence.

Minor but operationally important changes have included alignment of enforcement mechanisms with the Monetary Penalties Enforcement Act 2005 (2011 amendments to ss.21 and 21A), clarification of the status of pecuniary penalty orders as fines, and procedural adjustments to notice and service requirements (2022 amendments to s.28(3)).

The policy driver throughout has been the realisation that traditional conviction-based confiscation captures only a small fraction of criminal profits. Unexplained-wealth legislation shifts the focus from “follow the crime” to “follow the money,” placing the evidentiary burden on the wealth holder. The 2013 reforms were also intended to bring Tasmania into closer alignment with Commonwealth and other State regimes, facilitating cross-border enforcement through the equitable sharing provisions in s.79(1) and (5)(d).

Tasmanian courts have had limited occasion to consider the Act’s constitutional validity, but the unexplained-wealth provisions raise familiar issues litigated elsewhere. In Attorney-General (NT) v Emmerson (2014) 253 CLR 393 the High Court upheld analogous Northern Territory legislation against Chapter III and acquisition-of-property challenges. The Tasmanian provisions are likely to survive for the same reasons: the forfeiture is characterised as a civil penalty rather than punishment, and any acquisition is on just terms (compensation rights under ss.18, 19, 172).

The reversal of onus in s.85 has been criticised as departing from the presumption of innocence, although the proceedings are civil (s.183(3)(d)). In practice, respondents have argued that the breadth of “wealth” (including gifts, consumer goods and benefits received at their direction) makes it practically impossible to discharge the onus. Courts have responded by requiring the respondent to prove, on the balance of probabilities, the lawful acquisition of each constituent of wealth (consistent with the statutory language).

Third-party litigation under s.18 has produced the largest volume of reported decisions. The requirement that the applicant prove both good faith and absence of reasonable suspicion has been strictly applied. In one unreported Supreme Court matter a spouse who had received luxury vehicles as gifts was denied relief because bank records showed she was aware of the husband’s unexplained cash income.

The interaction between restraining orders and legal expenses has generated controversy. Section 193(1) prohibits use of restrained property to pay legal costs, forcing respondents onto legal aid or pro-bono representation. This has been challenged as impairing the right to a fair hearing, but courts have upheld the provision on the basis that the State’s interest in preserving the asset pool outweighs the respondent’s interest in choosing counsel of choice.

Procedural fairness arguments have arisen in relation to ex-parte interim wealth-restraining orders (s.116) and examination orders (s.92). The Supreme Court has held that the statutory scheme itself provides the necessary safeguards: prompt inter-partes review, rights to object (s.134), and use-immunity for examination answers (s.94(7)–(8)).

Controversy also surrounds the breadth of “commercial benefit” (s.4B) and “literary proceeds” (s.4C). Media organisations have expressed concern that publishers could be required to disgorge profits from books or documentaries about notorious crimes even where the author has no direct connection to the offender. The provisions have not yet been tested at appellate level in Tasmania.

Most practitioners assume that once a conviction is quashed the forfeiture order automatically dissolves. That is true for the original order (s.19(2)(a)), but any subsequent dealing with the property by the State in good faith is protected (s.19(5)–(7)). If the State has already sold the asset, the former owner receives only the net proceeds after third-party payments under s.18.

Another trap is the interaction between effective control and third-party interests. A wife who holds legal title to the matrimonial home may still lose it if the court finds the husband directed its acquisition or enjoys its benefits (s.8(2)(e)). The onus is on the wife to prove, on the balance of probabilities, that she acquired the interest in good faith for sufficient consideration and without knowledge (s.18(5)). Courts have been unsympathetic where joint bank statements show large unexplained deposits.

The 28-day objection period for wealth-restraining orders (s.135(1)) runs from service, not from the date the order is made. Because interim wealth-restraining orders can be obtained ex parte and without notice (s.28(3)), a respondent may lose the right to object before ever learning of the order. The only safety valve is the court’s discretion to hear a late objection “if it thinks fit” (s.135(3)), but that discretion is not lightly exercised.

Unexplained-wealth examinations (s.92) are not limited to the respondent. Any person the court considers may have relevant information can be examined, including accountants, lawyers and family members. The use-immunity (s.94(7)) does not extend to derivative evidence, and the examination can be used to build a brief for subsequent criminal charges provided the charge is not based on the compelled answers themselves.

Financial institutions face strict liability for tipping-off (s.57). The prohibition survives even after the monitoring order has expired. A compliance officer who mentions the existence of an order in an internal email to a non-authorised colleague commits an offence.

Finally, the Act’s definition of “benefit” (s.4(1)) includes any “service or advantage.” Courts have accepted that the provision of free labour, discounted goods, or even sexual services obtained through trafficking can constitute a benefit for the purpose of pecuniary penalty assessment. Defence counsel who focus only on cash flows regularly under-estimate the ultimate penalty.

For individuals and corporations under investigation:

1. Immediately upon receipt of a restraining order or notice under s.87 or s.88, engage specialist counsel. The 28-day objection period (s.135) and seven-day response times for notices are strictly enforced.

2. Compile a comprehensive “lawful acquisition” dossier. Every asset must be traced to a verifiable source—tax returns, inheritances, loan documents, business records. The s.85 presumption is difficult to rebut without contemporaneous evidence.

3. Do not deal with restrained property. Even paying the mortgage from unrestrained funds can be risky if the payment is later characterised as a dealing (s.7(d)). Seek a variation under s.26(3) for living expenses.

4. If served with an examination order (s.92), attend with counsel. The privilege against self-incrimination does not excuse compliance, but answers cannot be used in subsequent criminal proceedings except for perjury (s.94(7)).

For financial institutions:

1. Implement automated systems to identify accounts linked to persons named in notices under ss.87–88. The seven-day response period is short; failure attracts corporate liability.

2. Train staff on the strict non-disclosure rules in s.57. Even confirming the existence of a monitoring order to an internal auditor who is not an “officer or agent … for the purpose of ensuring compliance” can breach the section.

3. Maintain detailed audit trails of all information provided. The Act provides use-immunity for the institution (s.89) only where information is supplied in good faith.

For legal practitioners:

1. Advise clients that restrained property cannot be used to pay legal fees (s.193(1)). Early application for legal aid is essential.

2. When acting for third parties, obtain evidence of the timing and circumstances of acquisition. Bank records, conveyancing files and affidavits from the vendor are critical to satisfying s.18(5)(c).

3. In unexplained-wealth matters, insist on item-by-item proof. Global assertions that “the business has always been profitable” will not displace the s.85 presumption.

For the Public Trustee and appointed managers:

1. Document all decisions concerning storage, insurance, maintenance and sale. The limitation on liability in s.36 is not absolute; gross negligence may still expose the office.

2. Apply promptly for directions under s.30(1) when conflicts arise (e.g. competing claims to surplus proceeds).

3. Keep accurate accounts. All receipts and payments must be capable of reconciliation with the common fund (s.189).

Compliance is not merely a matter of obeying court orders; it requires proactive evidence gathering, strict time management and a thorough understanding of the reversed onus that permeates the unexplained-wealth regime. Early specialist advice is the single most effective risk-mitigation step.