The Proceeds of Crime Act 2002 (Cth) is the federal legislation designed to prevent people from benefiting from crimes. The laws enable the Australian government to freeze, seize, restrain and ultimately confiscate assets that are believed to have a connection to criminal activity, even in cases where a person has not been found guilty of a crime.
The Act covers a range of offences including drug trafficking, fraud and money laundering. It also allows for the confiscation of assets linked to foreign crimes.
Litigation under this legislation is civil allowing federal authorities to confiscate assets on the balance of probabilities. This is a lower threshold than the criminal standard of proof meaning assets can be confiscated more easily.
The Chief Commissioner of the Australian Federal Police is responsible for enforcing the Proceeds of Crime legislation. In almost all cases, an application for Restraining Order will be made ex-parte (without notice). So the first time a person or a corporation will become aware of a restraining order will be when they are unable to access bank accounts or transfer funds or the police arrive to seize property.
This flow chart demonstrates how these proceedings most commonly play out. Not all these steps are undertaken in every Proceeds of Crime matter and some steps may occur in a different order. It is crucial that you obtain advice from a lawyer about when and how these steps apply to your specific matter. Failing to do so may mean that property is forfeited without recourse.
Proceeds of Crime Flow Chart
