Scales of Justice - ID 2207405

Legislation

Despite the abolition of common law forfeiture, recent legislative initiatives have seen the reintroduction of forfeiture as a sanction imposed by the state in response to criminal activities. The legislation shows signs of its early origins and can be seen as a complex adaptation of past concepts applicable to the relationship between the state, the individual and perceived social concerns of today.

There are four principle statutes that currently regulate the confiscation of assets and proceeds of crime in New South Wales. These are the:

The Criminal Assets Recovery Act 1990 (NSW) CARA

CARA is a complex piece of legislation. The custodian of this Act is the NSW Crime Commission, although it is noted that the Police Integrity Commission has used the provisions of the Act for its relevant purposes. Pursuant to CARA and Part 77 Rule 84 of the Supreme Court Rules, jurisdiction is limited to the Supreme Court of New South Wales.

Some of the more relevant sections of CARA include:

  • Section 10 which allows for a restraining order to be made ex parte. These orders can be varied so as to provide for reasonable living and legal expenses of a defendant.
  • Section 12 allow for ancillary orders to be made. This is predominantly used for varying interests in property in restraining orders and ordering examinations.
  • Section 16A sets out legislative framework upon which legal expense applications must be based. Note these cannot be extracted from property once forfeited.
  • Section 22 sets out the forfeiture regime
  • Section 24 allows for the release of property on grounds of hardship.
  • Section 27 sets out the regime in respect to proceeds assessment orders. Note these orders sit separately to forfeiture orders under s22 and operate as a debt due and payable to the crown.
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The Confiscation of Proceeds of Crime Act 1989 (NSW) COPOC

COPOC is a conviction based Act and is operated primarily by the NSW DPP. As a consequence its use is less frequent than CARA. As a general rule the Act is invoked when property becomes tainted by virtue of the offence. Note however that pursuant to section 5 of COPOC that the offence must be a serious offence. Hardship is a particularly relevant consideration under this Act as forfeiture is discretionary and the statute specifically includes hardship as a consideration of that discretion.

The forfeiture process is set out pursuant to section 18 of COPOC:

  1. The first step is to prove that the property sought to be forfeited is tainted.
  2. Once taint is established the onus reverts upon the convicted person to avoid the discretion to forfeit by evidencing the normal and intended use of the asset and/or demonstrating hardship.
  3. Although the definition of taint differs somewhat between states of Australia, currently in NSW for property to be deemed to be tainted there must be a substantial connection between the property and the offence.
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The Proceeds of Crime Act 1987 (Cth) POCA 1987
and the Proceeds of Crime Act 2002 (Cth) POCA 2002.

The Custodian of these acts is the Commonwealth DPP. AS with COPOC, the 1987 Act is strictly conviction based, however its operation and effect are far more regimented. The 2002 Act appears to be a combination of the CARA and POCA, as forfeiture can either be conviction or non conviction based.

  • Both Acts have time limitations and were until recently sought to be literally and strictly construed by the Commonwealth DPP. There is now some breathing space, however applications are still required to be made in accordance with POCA and the limitations within.
  • Conviction based forfeiture is effected when the offence upon which the conviction is based is a serious offence as defined under POCA.
  • Once this has occurred and providing a restraining order is in place and at the end of six months then by virtue of section 30 of the 1987 Act and section 92 of the 2002 Act then the property subject to a restraining order is automatically forfeited.
  • Relief from forfeiture can be achieved by applying for exclusion. Such relief must be applied for within the six months following conviction. However legislation provides for an extension of time to be made , provided the application is made without delay and diligently.
  • The process of exclusion from forfeiture ensures that the onus falls upon the applicant/defendant. The court must be satisfied that the property was not:
    • Used in or in connection with any unlawful activity, and
    • Was not derived directly or indirectly from any unlawful activity, and that the property was lawfully acquired.
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To Contact Greg Jones: Garfield Barwick Chamber, Level 11, 53 Martin Place, Sydney, 2000.
Phone 02 8815 9388  Mobile 0418 404985  Email: gjones@chambers.net.au