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Forfeiture and confiscation

Information about when property can be confiscated because it is believed to have been gained by a criminal offence.

Police have wide powers to confiscate and forfeit goods and money that are the proceeds of crime. These powers exist under both state and Commonwealth laws. The main Acts that deal with this are the state Confiscation Act 1997 and the Proceeds of Crime Act 2002 under Commonwealth law. However, many other Acts also deal with the forfeiture, seizure and destruction of particular items.

Powers allow property to be forfeited if it is used to commit an offence or if it is the subject matter of an offence, for example a press that is used to make illicit drug tablets and those illicit tablets can be confiscated and forfeited, but also property that has been purchased from profits for the sale of illicit drugs, or wealth that cannot be explained. Under Commonwealth law, profits made from literary works can also be forfeited. For example if an ex prisoner writes a book, the profits from that book can be confiscated.

Sometimes there is no need to wait for a person to be convicted of a crime for property to be forfeited. in some cases assets can be frozen to stop people dealing with those assets before a person has been charged with an offence.

These proceedings are not considered to be penalties, but a necessary order to prevent unjust enrichment.

A confiscation order is not part of a sentence, but is imposed in addition to a sentence.

State offences

Property can be forfeited in whatever form it is found or into whichever form it has been converted if that property has been used in connection with an indictable offence under Victorian law. So for example, if a person makes enough money from the sale of stolen alcohol to buy a car, that car can be confiscated and forfeited to the state.

Property can also be forfeited if it is the benefit of some crime or if the wealth is unexplained.

These orders are completely separate from a person's sentence and applications for these orders may be heard separately from a person's sentence hearing. Applications for these orders are made by the Proceeds of Crime Directorate within the Office of Public Prosecutions. Once made, the orders are enforced by the Asset Confiscation Office within the Department of Justice and Regulation.

For some offences the forfeiture is automatic. For example, all property that is owned and controlled by a person who has been convicted a serious drug offence is automatically forfeited to the state.

Under the civil forfeiture provisions there is no need for the alleged offender to be convicted or tried for an offence.

Penalty orders may be used to extract payment of an amount that is equivalent to a benefit that a person has gained from unlawful activity.

The Act also allows for interstate forfeiture orders to be registered in Victoria.

See Automatic forfeiture and Parts 3, 4, 8, 15—Confiscation Act 1997 (Vic)(opens in a new window).

Which indictable offences are affected?

Orders under the Confiscation Act 1997 can be made that relate to offences listed under Schedules 1 and 2 of that Act. These include:

  • all indictable offences
  • drug trafficking and cultivation involving a commercial quantity, or to a child, or at a school
  • conspiring to trafficking
  • fraud and dishonesty offences involving more than $50,000
  • money laundering
  • unlawful export of seafood worth more than $50,000
  • bribery under the Casino Control Act 1991
  • common law conspiracy to defraud involving more than $50,000
  • common law bribery of a public official
  • provision of sexual services by children involving more than $50,000

See Schedules 1 and 2—Confiscation Act 1997 (Vic)(opens in a new window).

Commonwealth indictable offences

Under Commonwealth Proceeds of Crime Act 2002 goods and money can be traced, frozen and confiscated if they are the proceeds of a Commonwealth indictable offence. This includes indictable offences that may be tried summarily.

When a person is convicted of an indictable offence, the Australian Federal Police may apply to court for a confiscation order. These orders may permit:

  • forfeiture of property used in connection with committing an indictable offence
  • a penalty to be paid for an amount that is the equivalent of the proceeds gained from the offence, or
  • a penalty paid for an amount equivalent to the literary proceeds gained from the offence.

Some applications can be made even though no conviction has been found. The proceedings for these orders are civil proceedings and so the rules of evidence in civil proceedings apply.

The Act makes it possible to claw back assets and proceeds even if they are outside Australia.

The Department of Public Prosecutions can also apply to court for a restraining order. This order directs that property that belongs to a person who has been, or is about to be, convicted of an offence must not be disposed of or dealt with in any other way.

See 17.1.1 in Judicial College of Victoria—Victorian Sentencing Manual—Confiscation – 17(opens in a new window).

Which offences are affected?

This applies to many 'serious offences', including:

  • people smuggling
  • terrorism offences
  • drug trafficking, and
  • money laundering

See s. 338—Proceeds of Crime Act 2002 (Cth)(opens in a new window).

More information

Legislation

Confiscation Act 1997 (Vic)

See Confiscation Act 1997 (Vic)(opens in a new window).

Proceeds of Crime Act 2002 (Cth)

  • s. 7—the confiscation scheme
  • s. 338—defines indictable offence and serious offence
  • Part 2-1A—Freezing orders
  • Part 2-1—Restraining orders
  • Part 2-2—Forfeiture orders
  • s. 72—relieving certain dependents from hardship
  • Part 2-3—Forfeiture on conviction of a serious offence
  • Part 2-4—Pecuniary penalty orders
  • Part 2-5—Literary proceeds orders

See Proceeds of Crime Act 2002 (Cth)(opens in a new window).

Reference

Department of Justice and Community Safety

See Department of Justice and Community Safety—Asset confiscation(opens in a new window).

Judicial College of Victoria

See Judicial College of Victoria—Victorian Sentencing Manual—Confiscation – 17(opens in a new window).

Office of Public Prosecutions (OPP)

See Office of Public Prosecutions—Proceeds of Crime(opens in a new window).

The office also has a policy document about proceeds of crime.

See 'Chapter 11 Proceeds of crime' in Office of Public Prosecutions Victoria—DPP's policy(opens in a new window).

Updated