Civil Forfeiture Under the Victorian Confiscation Act

The article Civil Forfeiture Under the Victorian Confiscation Act is written by Brittany Llewellyn, Associate, Doogue + George Defence Lawyers.

Brittany holds a Juris Doctor and Bachelor of Arts with Honours from the University of Melbourne. She is notably experienced in criminal cases related to sexual crimes, drug courts, and therapeutic jurisprudence.

Before becoming a part of Doogue + George, Brittany served as a Judge's Associate to his Honour Judge Higham and worked exclusively in the County Court's criminal division. She has also worked as a Research Assistant, volunteered extensively for various legal centres, and completed internships domestically and abroad.

What are Civil Forfeiture Restraining Orders and Civil Forfeiture Orders?

Civil Forfeiture Orders are a type of order used to confiscate property when charges are not laid. Rather, the orders are applied for based on suspected offence(s) of the kind listed in Schedule 2 of the Confiscation Act.

A Civil Forfeiture Restraining Order is the first step in the state applying to take your property pursuant to the civil forfeiture scheme. A Civil Forfeiture Restraining Order is intended to preserve the property for potential forfeiture. Orders can sometimes make provision for reasonable expenses but will otherwise restrain you from dealing with your property in any way. Once made, a Civil Forfeiture Restraining Order takes immediate effect. It will cease to exist after 90 days unless the prosecution has an application for a Civil Forfeiture Order on foot.

The second step is for the prosecution to apply for a Civil Forfeiture Order to be made, which is an order intended to permanently deprive you of your property in circumstances where the property is suspected to be tainted by a Schedule 2 offence, but no one is charged.

How do they work?

The civil forfeiture scheme is used in cases where charges have not yet been laid or can be used to secure forfeiture of property in cases where charges did not lead to a conviction and can be made even in circumstances where someone was acquitted.

To get a Civil Forfeiture Restraining Order, the prosecution must demonstrate that a police officer has reasonable grounds for suspecting that property is “tainted” by a Schedule 2 offence. Schedule 2 offences primarily target offending of a kind that may be engaged in as part of professional criminal enterprises. This includes trafficking drugs in a commercial or large commercial quantity, and many offences where the value of the property obtained reaches a minimum of $50,000, such as armed robbery.

Once a Civil Forfeiture Restraining Order has been made, the Prosecution is entitled on application to be granted a Civil Restraining Order that will result in the loss of your property, provided that they have complied with the relevant notice period and there is no application to exclude on foot.

What is the law that allows this to happen?

Part 4 of the Confiscation Act 1997 (Vic) contains the provisions that allow for and govern the operation of Freezing Orders.

Can property be excluded from Civil Forfeiture?

Property interests can be excluded from Civil Forfeiture Restraining Orders if the person with the property interest can show either that the property was not tainted (i.e. not used/intended to be used for, nor derived from criminal offending), or that they were not involved or aware of the criminal activity.

There are some protections in the Act for people providing information in support of applications to exclude their property from the civil forfeiture scheme which seek to prevent that evidence from being used to prosecute them. Nevertheless, it is very important to be careful in situations when charges have not been laid to make sure that you do not lodge an ill-conceived exclusion application that could aid an investigation or otherwise incriminate you in criminal activity.

Time limits for exclusion

Exclusion applications must be made within 30 days:

• For Civil Forfeiture Restraining Orders, you must apply for exclusion within 30 days from the day that you were served with notice that the Civil Forfeiture Restraining Order was made.
• For Civil Forfeiture Orders, you have 30 days from the day that the order was made.

Practical tips

• Civil Forfeiture Restraining Orders are not commonly used because when property is suspected of being linked to a Schedule 2 offence, police are eager to investigate and lay charges. It is important in a context in which charges have not (yet) been laid that you do not do anything to assist in any investigation which is against your interests.
• To exclude your property interest from the operation of Civil forfeiture Restraining Orders you need to be able to say that you were not involved in the offending, or that your property was not tainted.
• Think about whether anyone else has an interest in the property and discuss their interest with your lawyer – this information could be used to have their property interest excluded and to potentially prevent any eventual forfeiture from occurring.

Do I need a lawyer?

Experienced criminal defence lawyers can assist you in providing advice and by preparing applications to exclude that are consistent with maintaining your uncharged status. A lawyer will also be able to advise you throughout the civil forfeiture process including to make sensible applications such as for reasonable living or business expenses to be paid out of your restrained property.

Date Published: 1 June 2022