How proceeds of crime are recovered using the confiscation schemes
Under the Criminal Proceeds Confiscation Act 2002, the CCC can apply to the Supreme Court to confiscate property by either of the following schemes:
- Civil confiscation scheme — a person's property can be restrained where there is a reasonable suspicion of serious crime-related activity.
- Serious drug offender confiscation order scheme — where the property of a person who is convicted of a qualifying drug offence is liable to forfeiture, even if the property was acquired lawfully.
Civil confiscation scheme
Step 1: Restraint
If the Supreme Court is satisfied that there is a reasonable suspicion that the person has engaged in serious crime-related activity, it can grant a restraining order over a person’s property. This order prohibits the owner from selling or otherwise disposing of the property.
The restraining order has a life of 28 days and it continues if an application for forfeiture, or proceeds assessment or unexplained wealth order is made to the court during that period by the CCC (step 2).
Step 2: Forfeiture
Property is forfeited through:
- A forfeiture order
To obtain this order, the State must prove that the person has engaged in serious crime-related activity in the past 6 years. If granted, this allows the property that has been [illegally acquired] to be sold by the Public Trustee.
- A proceeds assessment order
This is a pecuniary or financial penalty and, if granted, allows the value of the proceeds derived from illegal activity to be recovered. To obtain this order, the State must prove that the person engaged in serious crime-related activity in the past 6 years.
- An unexplained wealth order
This is a pecuniary order to recover the value of the person’s wealth if the respondent is unable to satisfactorily explain that it has been derived from a legitimate source. This requires the Supreme Court to be satisfied that there is a reasonable suspicion that the person engaged in serious crime-related activity at some time.
Serious Drug Offender Confiscation order (SDOCO) scheme
Step 1: Restraint of property
A restraining order over all of a person’s property may be made if the Supreme Court is satisfied that a person has been charged with a qualifying drug-related offence. The restraining order has a life of 12 months and continues if the State makes an application to extend the order.
Step 2: Forfeiture
Once a person is convicted of the qualifying offence and a serious drug offence certificate is issued by the court, the State can apply for a Serious Drug Offender Confiscation order. If granted, the restrained property would be forfeited to the State and, where required, sold by the Public Trustee.