21 / 10 / 2021

The Confiscation of Criminal Assets Act

The Confiscation of Criminal Assets Act 2003 (ACT) (the COCA) is a legislative scheme in the Australian Capital Territory designed to give effect to an overarching public policy of deterrence. That is, that those who commit criminal offences should be deprived of any enrichment by those offences, whether or not they have been convicted of any criminal offence.

The scheme provides a mechanism by which law enforcement authorities can trace, track, and seize money or property where a police officer has a reasonable suspicion, or which the Court believes, (a civil standard, not criminal), to have been connected with or derived from criminal activity. The COCA is an unusual scheme. Legislation designed to deter and punish criminal activity otherwise will typically remain strictly in the purview of criminal law processes and the standard of proof of ‘beyond reasonable doubt’.

Similar forfeiture schemes exist in every Australian jurisdiction, however there are important variations and distinctions between each regime. The legislation is highly complex, containing hundreds of provisions.

Restraining Orders and Civil Forfeiture Orders

Where the police have made an application to restrain a person’s property under section 26 of the COCA, the Court is required to have regard to the affidavit and any other evidence supporting the application. Pursuant to section 32 it must make the order if satisfied that there are reasonable grounds for the officer’s beliefs and suspicions stated in the affidavit. If an indictment has not been presented for an ‘ordinary offence’, an indictment must be presented within 6 weeks, or for a ‘serious offence’, there must be an intention to present an indictment or apply for a civil forfeiture or penalty order against the person.

A restraining order may direct the public trustee and guardian to take control of the restrained property and may or may not also provide for living, business, or legal expenses to be met out of the restrained property. It is an offence under the Act to deal with property subject to a restraining order where a person knows or is reckless as to whether an order is in place, the restraining order has been registered, or where notice of the order has been given to the person: s 23.

Civil proceedings initiating the seizure of property may be, and are often, conducted in a closed court in the absence of a person or their legal representative, and without their advance knowledge: s 69. Section 67 of the COCA requires the Court to make an order that restrained property be forfeited to the Territory if satisfied on the balance of probabilities that a person has committed a serious criminal offence in the prior 6 years, or potentially longer if an application for an extension of time is granted.

Section 67 further limits the Court’s discretion by preventing it from refusing to make a forfeiture order even in circumstances where the Court is not satisfied that the criminal offence was committed in the relevant 6-year period, or on a particular day or time within that period. It must still make an order even where an indictment has not been presented against the person for the offence. The COCA deems it to be irrelevant that a person has not been convicted for the offence, the person has been cleared of the offence (including where the person has been convicted and then cleared of the offence), or where a doubt has been raised about whether the person committed the offence.

Unexplained wealth

Under section 26A of the COCA the Director of Public Prosecutions may apply for a restraining order over unexplained wealth.

When making an assessment of the unexplained wealth of a person, the Court must be satisfied that the difference between their total wealth and the sum of the value of the property was not derived from serious criminal activity. This is reduced by any amount equal to the value of any property the person forfeited under a forfeiture order, or payable by them under a penalty order. The burden of proof is on the person to prove that their wealth was not derived from serious criminal activity: s 98E. A further order can be made by the Court directing the Territory to pay an amount from confiscated unexplained wealth if satisfied that the unexplained wealth order would cause undue hardship to a dependant of the subject of the order, the amount would relieve the hardship, and if the dependant is over 18 years of age,  and had no knowledge of the conduct that is the subject of the order: s 98F.

The application must be supported by an affidavit of a police officer which states that the officer suspects that a person’s total wealth exceeds the value of the person’s lawfully acquired wealth, and that the whole of any part of the person’s wealth was derived from serious criminal activity. The officer must state the grounds for their suspicion, but does not have to specify any particular criminal offence. It is sufficient to describe the nature of the criminal activity in general terms: s 29A. As with civil forfeiture orders, unexplained wealth orders are capable of operating in relation to offending, or alleged offending up to 6 years prior to the application.

A problematic regime?

Civil forfeiture and unexplained wealth regimes have received criticism for distorting the historic separation between criminal and civil proceedings.[1] Concerns have been raised that these laws do not strike the right balance between crime prevention and deterrence on the one hand, and the maintenance of legal principles and protections on the other.[2] Unexplained wealth laws are particularly intrusive upon the usual procedural and evidentiary safeguards associated with the accusatorial process, as they do not require prosecutors to link the wealth that has been identified to a specific criminal offence.

The High Court has struck off legislation in other contexts which purported to use civil standards and burdens of proof to determine whether punishment should be inflicted, or individual rights interfered with.[3] The legislation was found to be contrary to the institutional integrity of the Supreme Court. The High Court has also previously invalidated elements of a NSW civil forfeiture regime, the Criminal Assets Recovery Act 1990 (NSW), which required the NSW Supreme Court to make a restraining order if it was satisfied an officer’s affidavit reasonably supported that officer’s suspicions about the derivation of the property the subject of the application. It also limited the circumstances in which that order could be removed.  An affected party was required to prove it was more probable than not that the relevant property was not fraudulently or illegally acquired.[4]

The use of confiscation and restraining orders by law enforcement authorities to seize assets and property is not uncommon. Three prominent high-value seizures within the ACT have been reported by the media between 2020 and 2021:

Max Haesler, Lawyer

[1] See, eg, Anthony Gray, ‘The Compatibility of Unexplained Wealth Provisions and ‘Civil’ Forfeiture Regimes with Kable’ (2012) 12(2) QUT Law and Justice Journal 18.  

[2] Professor Natalie Skead et al, Pocketing the proceeds of crime: recommendations for legislative reform (Report to the Criminology Advisory Council, July 2020), viii.

[3] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 98 (Toohey J), 107 (Gaudron J), 134 (Gummow J).

[4] International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319.