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Criminal Confiscation

The Commonwealth Director of Public Prosecutions (CDPP), in partnership with other federal law enforcement authorities, has a central role in taking action in the area of criminal confiscation.

The Proceeds of Crime Act 2002 (POC Act 2002) establishes a comprehensive scheme to trace, restrain and confiscate the proceeds of crime against Commonwealth law. It can also be used to confiscate the proceeds of crime against foreign law. The POC Act 2002 operates in addition to the Proceeds of Crime Act 1987 (POC Act 1987), which applies to proceedings which were commenced before 1 January 2003.

There are two broad categories of confiscation action under the proceeds of crime regime. These are: action based on prosecution action, and ‘civil’ based action. This dual system in proceeds of crime action reflects the approach taken in a number of other jurisdictions.

Under the POC Act 2002, confiscation action can be taken independently of the prosecution process. There are seven types of confiscation action available under the Act:

• conviction based forfeiture order;
• conviction based pecuniary penalty order;
• automatic forfeiture following conviction;
• person directed civil based forfeiture order;
• asset directed civil based forfeiture order;
• civil based pecuniary penalty order; and
• literary proceeds order.

The first three confiscation options make up the conviction based stream. The next four make up the civil based stream.

The responsibility for investigating cases and collecting evidence rests with the Australian Federal Police and other Commonwealth investigative agencies. The Insolvency and Trustee Service Australia (ITSA) is responsible for managing restrained property in all cases where a court directs that property be taken into custody and control.

Confiscated assets and other money is paid into the Confiscated Assets Account, which was established by the POC Act 2002.

The CDPP works closely in this area with the Australian Federal Police, the Australian Crime Commission and other investigating agencies. The CDPP relies on investigating agencies to locate and collect the evidence and other material required to pursue the proceeds of crime. The CDPP provides advice and other support at the investigation stage. Cases often require ongoing support from the investigators, both up to and after final confiscation orders have been made.

The CDPP also works closely with ITSA. ITSA is responsible for securing, managing and realising restrained property. ITSA exercises an independent function and operates separately from the CDPP.