By James Stevens, Director and Solicitor, Go To Court Lawyers. Last reviewed 10 April 2026.
In New South Wales, the Confiscation of Proceeds of Crime Act 1989 governs the forfeiture of assets associated with criminal activity. Under this Act, certain property may be confiscated if a person is charged or convicted of an offence. This comprehensive legislation works alongside the Criminal Assets Recovery Act 1990 to ensure that criminals cannot profit from their illegal activities. Asset forfeiture laws in NSW are designed to deprive offenders of the financial benefits of crime while providing compensation to victims and funding for law enforcement initiatives. This page deals with asset forfeiture in New South Wales and the various mechanisms available to authorities.
Why asset forfeiture?
The Act seeks to ensure that offenders do not benefit from the proceeds of their offending and that property used in connection with offending is forfeited. To achieve this, it provides that various types of confiscation orders, including restraining orders, forfeiture orders and pecuniary penalty orders, can be made and enforced when a person is convicted of a serious offence.
The principle of removing criminal incentives
Asset forfeiture serves multiple important purposes within the criminal justice system. Primarily, it removes the financial incentive for criminal behaviour by ensuring that offenders cannot retain the profits from their illegal activities. This deterrent effect is particularly important in cases involving organised crime, drug trafficking, and white-collar offences where the potential financial gains might otherwise outweigh the risks of prosecution.
Victim compensation and public benefit
Forfeited assets are often used to compensate victims of crime or to fund crime prevention programs and law enforcement activities. This creates a positive cycle where the proceeds of crime are redirected toward beneficial community purposes and supporting those who have been harmed by criminal conduct.
Restraining orders
A restraining order is an order that prevents a party from dealing with property. The Supreme Court may make a restraining order when:
- the person who is the subject of the application has committed a serious offence
- the person has acquired the property from criminal activity
- the property was acquired as a result of a serious criminal offence
Application process for restraining orders
Applications for restraining orders are typically made by the Director of Public Prosecutions or other authorised authorities. These applications can be made ex parte, meaning without notice to the person whose property is to be restrained. The court must be satisfied on the balance of probabilities that there are reasonable grounds to believe the property is the proceeds of crime or was used in connection with criminal activity.
Duration and effect of restraining orders
Restraining orders remain in force until they are revoked by the court or until other confiscation proceedings are finalised. During this period, the restrained property cannot be sold, transferred, or otherwise disposed of without court permission. The court may appoint a receiver to manage and preserve the property during the restraint period.
Breaching a restraining order
It is an offence under section 58L of the Victims Support and Rehabilitation Act 1996 to breach a restraining order. A person breaches a restraining order if they deal with the property that is the subject of the order in a way that is contrary to the terms of the order.
The maximum penalty for breaching a restraining order is two yearsimprisonment, afine equivalent to the value of the property, or both.
What constitutes a breach
A breach can occur through various actions including attempting to sell the property, transferring ownership, using the property as collateral for loans, or disposing of the property in any manner contrary to the restraining order terms. Even innocent third parties who deal with restrained property may face legal consequences, making it crucial for property transactions to include proper due diligence checks.
Forfeiture orders
Forfeiture orders are governed by section 18 of the Confiscation of Proceeds of Crime Act 1989. A forfeiture order can be made after a conviction for a serious offence where there is reason to believe that property was derived through criminal activity.
A forfeiture order allows the Department of Public Prosecutions to seize property. It can be made either by the Supreme Court or by the District Court.
Types of property subject to forfeiture
Forfeiture orders can apply to various types of property including real estate, vehicles, bank accounts, shares, business interests, and personal property. The property must be shown to be either proceeds of crime or instrumentalities of crime - that is, property used to facilitate or commit criminal offences.
Third party interests
Before making a forfeiture order, courts must consider the interests of innocent third parties who may have legitimate claims to the property. The legislation provides mechanisms for third parties to apply for the exclusion of their interests from forfeiture orders, provided they can demonstrate their interest was acquired in good faith and without knowledge of the criminal activity.
Pecuniary penalty orders
Under section 24 of the Confiscation of Proceeds of Crime Act 1989, a court may make a pecuniary penalty order. This is an order based on an assessment of the value of the benefits derived from criminal offending which orders the person to pay a penalty equal to this value.
If the person has been made subject to a forfeiture order in relation to some of the property, the amount of the pecuniary penalty order will be reduced by the amount already forfeited.
The amount of a pecuniary penalty order is assessed based on a consideration of:
- the money or value of the property that came into the possession of the defendant; or
- the money or value of the property that came into the possession of another person at the request or direction of the defendant
because of the defendant having committed offences.
Assessment of benefits
Courts use various methods to assess the value of benefits derived from crime, including expert valuations, financial investigations, and lifestyle analyses. The assessment may consider not only direct proceeds but also any increase in wealth that appears disproportionate to the person's legitimate income during the relevant period.
Drug proceeds orders
Under section 29 of the Confiscation of Proceeds of Crime Act 1989, an application may be made for a drugs proceeds order after a person has been convicted of a drug trafficking offence.
When this application is made, the court must:
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