Criminal Confiscation

Up until 1 January 2012, the CDPP had sole responsibility for conducting criminal confiscation action under Commonwealth legislation. On 1 January 2012, the Criminal Assets Confiscation Taskforce (the Taskforce) which is led by the AFP and includes ATO and ACIC was established. At the same time legislative amendments to the POCA came into force so as to enable the Commissioner of the AFP to take criminal confiscation action under that Act.

Following the establishment of the Taskforce operated by the AFP, the CDPP’s role in criminal confiscation is now limited. The AFP is taking responsibility for the majority of proceedings under the POC Act 2002. From 2 April 2012 the CDPP no longer commenced criminal confiscation action in non-conviction based matters or conviction based matters commenced by restraining order.

The CDPP retains responsibility for taking criminal confiscation action in matters where the restraint of property is not required to preserve the property for confiscation and the person has been convicted of an offence. All other matters are conducted by the Taskforce.

The Director also has a function under section 6(1)(g) of the DPP Act to recover pecuniary penalties in matters specified in an instrument signed by the Attorney-General. On 3 July 1985, an instrument was signed which gives the CDPP a general power to recover pecuniary penalties under Commonwealth law.

The POCA 1987 applies to cases in which confiscation action was commenced prior to 1 January 2003. There is only a minimal amount of residual litigation under the POCA 1987. No amendments have been made to the POCA 1987 to enable the Commissioner of the AFP to conduct matters under this Act.

The CDPP also has statutory duties under the Crimes (Superannuation Benefits) Act 1989 and Part VA of the Australian Federal Police Act 1979. The CDPP has the function of bringing applications to forfeit the employer-funded component of superannuation payable to Commonwealth and AFP employees who have been convicted of corruption offences.

The CDPP has two further responsibilities in this area which are now used infrequently following the enactment of proceeds of crime legislation, namely:

  • Under Division 3 of Part XIII of the Customs Act the CDPP is vested with power to bring proceedings to recover profits earned from ‘prescribed narcotic dealings’; and
  • Under the DPP Act 1983, the CDPP has power to take traditional civil remedies action on behalf of the Commonwealth in cases where there is a connection with a prosecution.

Each State and Territory in Australia has legislation dealing with the confiscation of property derived from State and Territory offences. The CDPP is not involved in proceedings brought pursuant to State and Territory proceeds of crime legislation.

Click here  for more information regarding the statistics in relation to the CDPP’s criminal confiscation practice