Asset Forfeiture (ACT)
In the ACT, the police have powers to seize and confiscate property that has been used in connection with an offence. The courts also have powers to order that property be forfeited and to prevent property from being disposed of when criminal proceedings are on foot. This page deals with asset forfeiture in the ACT.
Legislation
The Confiscation of Criminal Assets Act 2003 aims to encourage law-abiding behaviour and to deprive persons of property and of material advantages gained by the commission of an offence.
The Act empowers courts to make restraining orders preventing the disposal of property, to order the confiscation of property from a person upon conviction and to order that property be forfeited in the absence of a conviction where the court is satisfied on the balance of probabilities that they have committed a serious offence.
Powers of the court
ACT courts may make the following orders in respect of property that has been used in connecting with a crime:
- A restraining order, preventing the disposal of property or in order to secure payment of a penalty order (Section 33)
- A conviction forfeiture order, for the forfeiture of tainted property after a conviction (section 54)
- An exclusion order, excluding property from an order (Division 6.2)
Restraining orders
Restraining orders may be made in a range of situations, including in relation to artistic profits, unexplained wealth or tainted property.
Under section 33, a restraining order must state that a person must not deal with property except in accordance with the order. It must state the property to which it applies, the people to which it applies and the period for which it applies.
A restraining order may be applied for until six years after the date an offence was committed.
If a person contravenes a restraining order, they may be fined up to 500 penalty units or imprisoned for up to five years.
Conviction forfeiture orders
A conviction forfeiture order may be made in relation to tainted property after a person has been convicted of an offence.
Tainted property is property that:
- was used, or was intended to be used, to commit an offence;
- was derived from the commission of an offence;
- was derived from property mentioned in the above two points.
Tainted property also includes money held in the bank that represents the value of property mentioned in the above three points.
The prosecution may apply for a conviction property order before, at the same time, or after the accused has been convicted of the offence.
The court may order the forfeiture of tainted property where it is satisfied that the offender has been convicted of the offence. When this occurs, the property is forfeited to the Territory 14 days after the order is made.
When a person is found guilty of a serious offence and a restraining order is made, the restrained property is automatically forfeited to the Territory. However, this does not occur if the restraining order is an artistic profits order.
Exclusion orders
A court may make an order excluding certain property from the ambit of a restraining order or a forfeiture order. An exclusion order can be applied for by the accused or by the prosecution.
Where the accused applies for an exclusion order, the court may make the order in relation to property that:
- was lawfully acquired
- is not tainted property
- is not required to satisfy a penalty order
- does not have evidentiary value in criminal proceedings.
Where another person applies for an exclusion order, the court may make the order if:
- the applicant has an interest in the property
- the applicant was not a party to the offence
- the interest is not subject to the control of the offender
- the interest is not tainted property
- the interest was acquired from the offender, it was acquired honestly
- the property does not have evidentiary value in criminal proceedings.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.