Asset Forfeiture (ACT)

In the ACT, the Confiscation of Criminal Assets Act 2003 provides for the confiscation of assets and property associated with criminal offending. The Act operates on the principle that assets should be forfeited if they were obtained through criminal offending. This page deals with asset forfeiture in the ACT.

Court powers

The Act gives the court a range of powers in relation to protect associated with offending. These include the power to make a restraining order in relation to property, to order the forfeiture of property, or to exclude property from restraint or forfeiture.  

Tainted property

Under section 10 of the Act, tainted property is property that:

• was used, or intended to be used, in connection with the offence;
• that was derived from the commission of the offence;
• that was derived from property used in or derived from the offence.

Any property that is found in a person’s possession during or immediately after they have committed an offence is taken to be tainted property. A person may be able to avoid have an order made in relation to property if they can prove that it was acquired legitimately.

Unexplained wealth

Unexplained wealth is wealth that a person has in their possession, which they cannot prove they obtained lawfully.

Artistic profits

Artistic profits are any property or advantage derived from the commercial exploitation of:

• an offender’s notoriety
• a depiction of the offence
• an expression of the thoughts, opinions or motives of the offender about the offence.

Restraining orders

Under the Act, restraining orders can be made in relation to tainted property, in relation to unexplained wealth, in relation to artistic profits, or in relation to other property.

When the DPP applies for a restraining order, it may seek an order in relation to stated property, in relation to all property owned by a person, or in relation to all property owned by a person other than stated property.

Under section 33 of the Act, a restraining order may state that a person may not deal with property except in accordance with the order, the period for which the order applies and the person to whom it applies. It may also include directions for how the property is to be disposed of.

If a person deals with property that is subject to a restraining order, they are in breach of the order and may be fined up to 500 penalty units or imprisonment for up to five years.

An application for a restraining order can be made for up to six years after the offence occurred.

Exclusion orders

A person may apply for property to be excluded from the ambit of a restraining order or a forfeiture order. An exclusion order will only be made if the court is satisfied that it is appropriate to do so.

If an application for an exclusion order is made by the offender, the court will make the order only if satisfied that:

• is not tainted property
• is not required to be restrained
• does not have evidentiary value in a criminal proceeding.

If an application for an exclusion order is made by a person who is not the offender, the court will make the order only if satisfied that:

• they have an interest in the property that was acquired lawfully
• they were not a party to the offence or to any other offence
• their interest is not subject to the effective control of the offender
• the interest is not tainted property
• the property does not have evidentiary value in a criminal proceeding.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.