Frequently Asked Questions
You need to check the relevant legislation in your State and Territory, as the rules are different in each jurisdiction.
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What are proceeds of crime?
- Proceeds of crime include property that is acquired whether directly or indirectly as a consequence of a crime being carried out. Confiscation laws extend to property that is partly acquired as the result of a crime.
- Asset confiscation laws put the onus on you to prove your property was obtained lawfully. In some states and territories police do not have to obtain a conviction before confiscating the property.
- Proceeds of crime laws also require the recipient of a gift to show that the giver obtained it legally. This is to stop people evading asset seizure laws by passing wealth to their family friends or associates.
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When can my property be restrained?
- A government law enforcement agency has the authority to restrain your property:
- when it reasonably suspects the property has been used to commit a crime; or
- where it has been purchased with money derived from an offence.
- Restraint of property orders can also be made as security against a future compensation order for a victim of crime. See our Victims' Compensation topic for more information.
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What is a pecuniary penalty order?
- This is a court order that instructs an offender to pay money to the government as a penalty for committing a crime.
- A pecuniary penalty order is like a judgment debt and interest is payable.
- Property may be restrained until the pecuniary penalty payment is made in full.
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What is an Unexplained Wealth Order?
- If you are suspected of owning property acquired other than through legal activity you will be required to establish the legal means by which you have acquired the property.
- Authorities do not need to show a connection between your property and any criminal activity.
- Where police suspect a drug trafficker has an expensive car or boat bought from the profits of crime they will apply to the court for an order to confiscate the asset.
- The court will be required to determine whether the asset was legally acquired.
- These provisions apply even if you have not been charged a criminal offence. No specific offence needs to be identified.
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What happens if my property or assets are frozen?
- You are not permitted to sell or deal with property that is subject to a restraining order. This rule will prevail unless the court decides otherwise.
- There are strict time limits to make an application to protect your property interests. You need to establish that you have acquired the property in question legally and that there is no connection between it and any form of criminal activity.
- Your application should be accompanied by an affidavit (sworn statement) detailing any other parties who have an interest in the property. You must present the police with this information within 7 days.
- If you need assistance preparing this affidavit our LegalPlan™ membership will allow you to ask lawyers for a Fixed Fee Quote on your matter.
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How long do I have to object to my property being confiscated?
- You have 28 days after receiving notice of the order to challenge a confiscation decision made by the court.
- If you can establish that you did not receive written notice of the order you will have 28 days after you became aware that your property was the subject of such notice.
- If you do not object to the notice within the 28 day limit your assets may be subject to automatic forfeiture.
- You can use our Phone a Lawyer service to get a preliminary consultation if you think you may need legal advice.
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Am I entitled to legal representation if all of my property is frozen?
- Yes. In some situations a court may allow you to use a portion of your assets to pay for legal representation as confiscation applications do not usually qualify for legal aid.
- In some states a court may also release assets so that you are able to meet your reasonable living expenses including:
- groceries;
- children’s school fees;
- mortgages; or
- other loan payments.
- If you have any concerns you can use our free and anonymous Ask a Lawyer service to get information specific to your situation.
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Can property be restrained and sold in order to compensate the victim of a crime?
- Yes. Property can be restrained as security for a future compensation order for any victim of the crime.
- Victims of crime can apply to the court for a compensation order at the time of sentence. See our Victims' Compensation topic for more information.
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Why did the Commonwealth government set up the Organised Crime Strategic Framework?
- It is estimated that organised crime costs the Australian economy more than $10 billion each year.
- Organised crime syndicates are becoming more innovative. Damage caused by organised crime has a serious impact on our economy businesses and the broader community.
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What type of property does the Confiscation Taskforce pursue?
- This is non-restrictive in scope. Any type of asset can be retrained if it is suspected of being either proceeds of crime or alternatively an instrument used in committing an offence.
- Examples of property that have been confiscated by the authorities include:
- houses;
- commercial property;
- cars;
- motorbikes;
- yachts;
- aeroplanes;
- jet-skis;
- cash; and
- valuable artwork.
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What is the Confiscation Taskforce and why was it set up?
- Drawing on resources like the Australian Federal Police and the Australian Taxation Office the Taskforce’s key role is to identify and pursue assets generated through criminal activity in cases where there is a connection to a Federal offence.
- Identifying proceeds of organised crime on a transnational front is another of the Taskforce’s primary objectives.
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View more Information on Proceeds of Crime