Asset Confiscation

What are Criminal Asset Confiscation Laws?

Not everyone in Australia is aware of how strong criminal asset confiscation laws are. If a drug dealer used his family home to conceal drugs, it can be stated that the home becomes compromised under the Act and proceedings could contend that the home has been used as an instrument of crime and is subject to seizure & therefore, can be confiscated.

The relevant authorities involved are the Australian Federal Police, New South Wales and/or the Australian Crime Commission. The process can start with a restraining order that effectively freezes all your current and future assets i.e your home, your car, your bank accounts, etc.

A number of applications can be made to the Court, including a revocation of the restraining order, exclusion from a restraining order, exclusion from forfeiture, a compensation order, and an allowance order among others.

Certain provisions for your legal expenses for your criminal asset confiscation matter and potentially an agreement for legal expenses can be allowed for the related criminal proceeding to be paid from the funds seized.

The legislation allows for compulsory examination of a range of people who may have information related to the proceeds of crime enquiry wherein you have no right to self-incrimination and/or legal professional privilege claims. This thereby requires you to answer questions that could incriminate you or answer questions related to confidential conversations that you have had with your legal advisor.

The main criteria in determining whether an asset can be forfeited are whether the asset was used as an instrument of crime and whether the funds seized are the result of the proceeds of crime.

The Confiscation Process

This process usually starts with the FID receiving a referral, either from the CID or a partner agency like the police force for instance. After that, they will evaluate the referral in order to decide if the Commission should start the confiscation proceedings with regards to the case at hand. 

In the event where the Commission decides that there are enough reasons to go ahead with the confiscation proceedings, the FID will get the needed court documents ready. The proceedings will begin and in a majority of cases, the Commission will apply for a restraining order. All applicable applications will be made through the NSW Supreme Court.

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Factors Considered when Assessing a Referral

Before the Commission decides to start the confiscation process, there are several factors to be taken account. Some of the key ones include:

  • The likelihood of the Commission proving an applicable offence by civil standards
  • The total assets obtainable to meet any order against the defendant
  • The possible costs of litigation
  • How the litigation costs would be covered
  • Proof that specific interests in property were lawfully or unlawfully obtained
  • Proof that proceeds were illegally obtained as well as the amounts obtained

How Confiscation Proceedings are Finalised

Under such circumstances, the Court has the power to decide if it wants to issue a confiscation order or instead dismiss the Commission’s application for the order. Regardless of which decision The Court arrives at, the orders could be made by consent or after a contested hearing.

After the proceedings are finalised by consent, the defendant will need to give a warranty pertaining to his interest in property during the signing of the final consent orders. In the event that the Commission finds out that the defendant did not fulfill this requirement, the CAR Act will be enforced whereby there will be a forfeiture of the undisclosed interest. 

Situations where the Commission does not Commence Confiscation Proceedings

There are generally two key situations when this occurs:

  1. The overall value of the potential defendant’s assets is insufficient to go ahead with the proceedings since it is deem as not worthwhile
  2. During the assessment process, it is revealed that there is a low likelihood that the potential defendant obtained enough proceeds of crime to justify the proceedings

Getting a Lawyer

The law is very complex and difficult to navigate. As such, you should engage a Legal Representative at this office if this situation arises for you and not seek to handle such situations yourself the money notice is given. Our extensive connections can help you resolve the matter quickly, effectively and satisfactorily to all parties; thereby saving you enormous costs.

For further information on the New South Wales Crime Commission, check out the NSW’s Confiscations Factsheet.

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