Criminal Property Confiscation Regulations 2000

The Regulations define three key categories of interstate orders and one broader category of corresponding laws. Each concept has distinct legal consequences under the Act.

"Corresponding law" is the gateway concept. Regulation 3 lists each state and territory law that the WA Attorney General considers to have equivalent effect to the WA Act. The list is exhaustive. It includes older statutes such as the Crimes (Confiscation of Profits) Act 1985 (NSW) and the Confiscation of Proceeds of Crime Act 1989 (NSW) alongside newer ones like the Criminal Proceeds Confiscation Act 2002 (Queensland). Notably, the Commonwealth Proceeds of Crime Act 2002 is absent. This means federal confiscation orders are not recognised under this state regime and must be enforced through separate Commonwealth mechanisms. The list is stated to apply "as amended from time to time", so a territory law that is later repealed but still in force at order time is captured. However, if a listed law is entirely repealed without replacement, the regulation still prescribes it, creating uncertainty about whether orders made after repeal remain recognised.

"Interstate confiscation declaration" (regulation 4) covers forfeiture orders that vest property in the state: for example, a forfeiture order under s 19(1) of the ACT Proceeds of Crime Act 1991, or an assets forfeiture order under s 22 of the NSW Criminal Assets Recovery Act 1990. The list includes both standard forfeiture orders and special forfeiture orders, as well as directions and substitution declarations from Queensland. These are orders that directly take ownership of property.

"Interstate criminal benefits declaration" (regulation 5) covers orders that require payment of a sum representing the value of benefits derived from crime: pecuniary penalty orders, proceeds assessment orders, and unexplained wealth declarations. For example, a pecuniary penalty order under s 10(1) of the NSW 1985 Act is included. These are personal liability orders, not in rem forfeiture.

"Interstate freezing order" (regulation 6) covers orders that restrain property pending a final confiscation order: restraining orders, sequestration orders, and wealth restraining orders. For example, a restraining order under s 14 or 18 of the Victorian Confiscation Act 1997.

The key legal effect is that once an order fits one of these definitions, the WA Act's Part 10 permits its enforcement in WA as if it were a WA confiscation order. This avoids the need for the interstate agency to bring separate proceedings in WA, saving time and cost for the state but potentially imposing greater burden on defendants who must resist enforcement across multiple jurisdictions.

The Regulations directly affect any person who has property located in Western Australia and who is subject to a confiscation, benefits, or freezing order made in another Australian state or territory. This includes natural persons, corporations, and trusts. The practical effect is that an individual convicted of a serious crime in, say, New South Wales, and owning a house in Perth, can have that house restrained and ultimately forfeited under WA law without the NSW authorities having to start a fresh case in WA. The owner must then challenge the enforcement in the WA courts, which may be less familiar with the originating state's law.

Criminal defence lawyers and asset recovery practitioners in WA must understand the prescribed lists to advise clients who have cross border exposure. If a client has a restraining order from another state, the lawyer must check whether it matches one of the order types listed in regulation 6 and whether the originating law is in regulation 3. If it does not match, the WA authorities cannot enforce it under these Regulations, though they may still use other mechanisms (e.g., common law recognition). The compliance burden falls heavily on the defendant: the Regulations provide no notice requirement, so a defendant may first learn of the enforcement when they attempt to sell or mortgage the WA property and find it frozen.

Financial institutions, real estate agents, and other third parties holding property on behalf of a person affected by an interstate order are also impacted. If they receive notice of a WA enforcement action based on an interstate order, they must comply or risk being in contempt of court. The Regulations do not create a registry or central database; the practitioner must independently verify whether an interstate order qualifies.

Law enforcement agencies, particularly the WA Commissioner of Police and the Director of Public Prosecutions, are the primary beneficiaries. They gain the ability to enforce orders from other states without reciprocal legislation. This reduces the cost of asset recovery and increases the chance that criminal proceeds can be captured even if the offender has moved assets to WA. However, the Regulations also impose a gatekeeping function: only the listed orders qualify, so enforcement agencies cannot rely on orders that are not prescribed.

The Regulations themselves impose no direct duties or confer any rights. They are definitional only. However, by prescribing orders and laws, they trigger duties and rights under the parent Act. The key duty is on WA courts: upon application by the relevant authority, a court must give effect to an interstate order that meets the prescribed definitions. This is not discretionary recognition; the Act mandates enforcement. A court retains some procedural powers, such as making ancillary orders to facilitate enforcement, but cannot refuse to recognise an order solely because it was made under a different statutory regime.

A person affected by the enforcement of an interstate order has the right to challenge the validity or enforceability of that order in the WA court. The basis for challenge would include arguments that the originating order does not fall within the prescribed category (e.g., it is a different type of forfeiture order not listed in regulation 4), or that the originating law has been repealed and is no longer a corresponding law (though the "as amended from time to time" wording may capture orders made before repeal). The Regulations do not provide for merits review of the underlying order; the WA court cannot reassess whether the order was correctly made under the originating state's law. That must be challenged in the originating state.

Third parties who have an interest in the WA property (e.g., joint owners, secured creditors) retain their rights under the Act to apply for exclusion of their interest. The Regulations do not affect those rights. However, the burden shifts onto the third party: they must assert their interest in WA proceedings, which may require separate legal representation and increase costs.

The Regulations also create a duty on WA enforcement authorities to correctly identify whether an interstate order falls within the prescribed lists. If they enforce an order that is not prescribed, they may act beyond power, exposing themselves to civil liability. Conversely, failing to enforce a prescribed order could be challenged by the interstate authority.

The Regulations contain no penalty provisions. Any penalty for non compliance with an enforced interstate order arises under the parent Act or under the originating state's law. For example, breaching a freezing order enforced under the Regulations could lead to contempt of court in WA, punishable by fine or imprisonment under the Act. The Regulations themselves merely enable that enforcement.

Practically, the enforcement mechanism works this way: once an interstate confiscation declaration is registered or recognised under the Act (the precise process is in the Act, not the Regulations), the WA Sheriff or other officer can seize property. If a person fails to pay a pecuniary penalty order that is an interstate criminal benefits declaration, the WA court can order enforcement as if it were a judgment debt. The Regulations reduce the procedural hurdles for the enforcing authority, making it easier to reach assets.

The cost implications for a person resisting enforcement are significant. Challenging an interstate order in WA requires hiring a WA lawyer, potentially briefing an expert on the originating state's law, and attending court in WA. There is no requirement for the interstate authority to pay the defendant's costs if the challenge fails. This creates a powerful incentive for interstate authorities to use the WA enforcement route rather than seeking a fresh WA order, as it shifts the cost burden to the defendant.

The Regulations also affect enforcement priority. If a defendant has property in WA that is subject to a NSW restraining order and also to a WA tax debt, the priority between the orders is determined by the Act, not the Regulations. The Regulations simply determine whether the NSW order is recognised at all.

The Regulations sit within a complex web of state and Commonwealth laws. Their primary interaction is with the Criminal Property Confiscation Act 2000 (WA), which gives them legal effect. They are delegated legislation and must be read consistently with the Act. If the Act is amended to change the definition of "corresponding law" or the enforcement provisions, the Regulations may need updating; the amendment history shows this has happened.

They interact with the corresponding laws listed in regulation 3. Although those are laws of other states, the Regulations make them relevant to WA courts. A WA judge interpreting an interstate order may need to consider the originating state's case law to understand the order's scope. This cross jurisdictional reliance increases legal complexity and costs.

The Regulations also repealed two earlier sets of regulations. The savings provisions in regulations 8 and 9 ensure that orders made under the old Crimes (Confiscation of Profits) Act 1988 (WA) continue to be enforceable. This prevents a clean break that would leave some orders unenforceable. The definition of "interstate forfeiture order" for savings purposes refers back to the 1988 Act's meaning, not the current one.

A notable gap is the absence of the Commonwealth Proceeds of Crime Act 2002 from regulation 3. This means that federal orders cannot be enforced under this WA regime. A federal restraining order over WA property must be enforced through the Commonwealth act itself, which may have different procedures and perhaps less favourable outcomes for the state. This could create coordination problems where both state and federal orders target the same property, requiring separate court applications.

The Regulations also interact with the Corporations Act 2001 (Commonwealth) if the person affected is a company in liquidation or administration. A freezing order enforced under the Regulations may conflict with the duties of a liquidator to realise assets for creditors. The Act may have provisions addressing such priorities, but the Regulations do not.

The Regulations were originally gazetted on 19 December 2000 and commenced on 1 January 2001, the same day as the parent Act. Since then, they have been amended three times.

The Criminal Property Confiscation Amendment Regulations 2004 (gazetted 23 April 2004) added numerous orders from the Northern Territory Criminal Property Forfeiture Act 2002 to regulations 4 and 6, and also added Queensland's Criminal Proceeds Confiscation Act 2002 to regulation 3 and to regulations 4, 5, and 6 with several specific order types. This reflected the enactment of new confiscation regimes in those jurisdictions.

The Criminal Property Confiscation Amendment Regulations 2014 (gazetted 30 December 2014, operative 31 December 2014) added further orders from Queensland, including serious drug offender confiscation orders, tainted property substitution declarations, and directions under the Criminal Proceeds Confiscation Act 2002. It also added Tasmania's wealth forfeiture orders and wealth restraining orders under the Crime (Confiscation of Profits) Act 1993 (Tas). Furthermore, it added corresponding laws for the Northern Territory (Criminal Property Forfeiture Act 2002) to regulation 3, which had been previously omitted? Actually the 2004 amendment had already added NT orders, but regulation 3 wasn't updated until 2014 to include the NT Act as a corresponding law. The 2014 amendment also added the Queensland Criminal Proceeds Confiscation Act 2002 to regulation 3.

The most recent amendment was the Criminal Property Confiscation Amendment Regulations 2025 (SL 2025/180, gazetted 29 October 2025, operative 30 October 2025). This amendment updated the lists to reflect further changes in Queensland legislation, specifically adding "a civil forfeiture order under section 38 of the Confiscation Act 1997 of Victoria" to regulation 4(q) and updating references in regulations 4, 5, and 6 to include various orders under the Criminal Proceeds Confiscation Act 2002 (Queensland) sections 58, 93ZZB, 151, 153D, 164, 202; and also under the Tasmanian Act section 152 and 142. The amendment also updated compilation notes.

The amendment history shows that the Regulations are actively maintained as other states enact new confiscation regimes or update existing ones. However, the list is not exhaustive; some states have old repealed Acts still listed, which may cause confusion.

The Regulations themselves have not been the subject of any reported litigation in the source provided. The source (the Regulations text) does not cite any cases. Consequently, any analysis of litigation history must be confined to what is absent: there is no case law interpreting these Regulations directly. However, the definitions they provide could be challenged in proceedings under the parent Act. For example, a person might argue that a particular interstate order does not fall within the prescribed list because of a technical difference in the wording between the regulation and the interstate order. Without case law, practitioners must rely on the plain text and any interpretive principles that the WA Supreme Court might apply.

The Regulations' savings provisions (regulations 8 and 9) could also generate disputes about whether an order made under the old Act is still covered. For instance, the meaning of "interstate forfeiture order" is tied to the repealed Crimes (Confiscation of Profits) Act 1988, which has its own definitions and case law. Litigation could arise over whether an order made under that Act before repeal is properly enforceable under the current regime.

Practitioners should note that the Regulations delegate significant definitional power to regulations. While no case exists, any challenge to the validity of a regulation (e.g., that it exceeds the regulation making power under the Act) could be a future avenue. The WA Supreme Court's general approach to delegated legislation would apply.

Several traps await the unwary practitioner. First, the list in regulation 3 includes laws that have been repealed. For example, the Crimes (Confiscation of Profits) Act 1985 (NSW) and the Crimes (Confiscation) Act 1989 (Qld) have been replaced by newer legislation. The regulation says "as amended from time to time", but once a law is repealed, it no longer has amendments. If an interstate agency obtains a fresh order today under a repealed law (which may remain in force for transitional purposes), is it still a corresponding law? The regulation does not address this. The safer course is to check whether the interstate law remains in force. If it is fully repealed, the order might not be recognisable, yet the WA authority may still try.

Second, the Regulations only prescribe certain order types. An interstate order that is functionally equivalent but not listed is not captured. For example, regulation 4 includes "a forfeiture order under section 19(1)" of the ACT Act but not other sections. If the ACT Act provides for forfeiture under s 20, that order would not be an interstate confiscation declaration. The practitioner must match the exact section.

Third, the saving provisions in regulations 8 and 9 only preserve old definitions for orders made before the Act commenced. They do not cover orders made after commencement under an old regime that has savings provisions. For example, an order made in 2025 under a repealed NSW Act that is still possible due to transitional provisions may fall into a gap: it is not a new order under a current corresponding law, nor is it an order made before the Act. The Regulations are silent on this.

Fourth, the Regulations do not specify how an interstate order is to be proved or registered. The Act's Part 10 presumably provides procedures, but practitioners must locate those rather than relying on the Regulations. This can cause confusion.

Fifth, the definition of "interstate criminal benefits declaration" in regulation 5 includes "a special forfeiture order under Criminal Proceeds Confiscation Act 2002 (Queensland) section 202". This is also listed in regulation 4 as a confiscation declaration. This overlap means the same order could be enforced either as a confiscation or a benefits declaration, potentially with different procedural consequences under the Act. The practitioner must be aware of both.

Sixth, the Regulations apply "as amended from time to time". This means that changes to interstate laws automatically affect WA enforcement without further WA regulation. A Queensland order made after a 2025 amendment to its Act might still be captured if the WA regulation's cross reference captures the new section, but if the section numbering changes, the old reference may fail. The practitioner must check the current version of both the WA regulation and the interstate law.

Compliance with the Regulations is not about filing or reporting; it is about correctly identifying whether an interstate order is enforceable in WA and then taking the appropriate action. For a person facing enforcement of an interstate order in WA, the first step is to obtain a copy of the order and the originating law. Check the order type against regulations 4, 5, or 6. If the order specifies a section number that matches one in the regulations, and the originating law is listed in regulation 3, then the order qualifies. If it does not match, the enforcement may be invalid and should be challenged.

If the order does qualify, the person should promptly seek legal advice in WA. The Act provides for procedures to challenge the enforcement, such as making an application to the WA court to set aside the recognition if the order was obtained improperly or if the person is a third party with an interest. The Regulations do not create a time limit, but the Act likely does; practitioners must check s 7 or s 8 of the Act. Gather evidence of the interstate circumstances, including any challenges already made in the originating jurisdiction.

For legal practitioners advising clients with cross border assets, proactively review whether any interstate criminal proceeding could lead to an order that would be recognised in WA. If a client is charged in another state and owns property in WA, advise on the risk of enforcement under these Regulations. Consider transferring or disposing of property before an order is made (subject to any existing restraints and general law on fraudulent disposition). If a client is already subject to a freezing order in, say, Victoria, verify whether it is listed in regulation 6. If it is a restraining order under s 14 of the Confiscation Act 1997 (Victoria), it is prescribed. The client must comply with that order in WA, meaning they cannot sell or mortgage the WA property without court approval.

For law enforcement agencies, before seeking enforcement, confirm that the interstate order is listed. Obtain a certified copy of the order and an affidavit from the interstate authority confirming the basis for the order. Then apply to the WA court under the Act for recognition. The Regulations make this easier, but the court may still require proof that the originating law is currently in force.

Financial institutions should implement procedures to check if any customer is subject to an interstate freezing order. Upon receiving notice from WA authorities, the institution must freeze the account or property without tipping off the customer. Failure to comply could result in contempt. The institution should maintain a list of the prescribed order types to identify legitimate notices.