Commonwealth Director of Public Prosecutions

Criminal Confiscation

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”) was established. The Taskforce is led by the AFP and includes the Australian Taxation Office (ATO) and Australian Criminal Intelligence Commission (ACIC). At the same time, legislative amendments to the Proceeds of Crimes Act 2002 (‘POCA 2002’) Act 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, the CDPP’s role in criminal confiscation is now limited. The AFP is responsible for the majority of proceedings under the POCA 2002. From 2 April 2012 the CDPP no longer conducts 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 no restraining order has been sought at the time the application is made; and a pecuniary penalty order relating to a person’s conviction where no restraining order has been sought at the time the application is made.

The Director also has a function under section 6(1)(g) of the DPP Act 1983 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 Proceeds of Crime Act 1987 (“POCA 1987”) applies to cases in which confiscation action was commenced prior to 1 January 2003. New actions are no longer possible under this Act. There is only a small number of existing matters where recoveries are ongoing under the POCA 1987.

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 that proceeds of crime legislation was enacted to cover, but which remain available, 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 which enables criminal actions by State and Territory authorities.

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