If you are charged with an offence under the Proceeds of Crime Act 2002 (Cth) or the Confiscation Act 1997 (Vic), there are a number of court orders which may be issued against you. It is critical to understand the implications of each order, as failure to respond appropriately and within set time limits may result in your property being forfeited to the State or Commonwealth.
In this article, we take a closer look at the orders that can be made against you under Australian proceeds of crime laws, and the potential consequences of each one.
A restraining order is a court order which prevents an individual from dealing with their assets. These orders can be made under both the Proceeds of Crime Act and the Confiscation Act. The purpose of a restraining order is to ensure that a person accused of an offence is not able to dispose of (or diminish the value of) their assets while legal proceedings are underway.
It is important to note that being subject to a restraining order is not the same thing as having your assets forfeited. Under a restraining order, assets are simply removed from your control, and effectively placed in limbo until the court makes a further decision about how they are to be dealt with.
A freezing order prevents an individual from making any withdrawals from any bank accounts in their name (or any accounts which they might have an interest in). Like a restraining order, the objective of a freezing order is to prevent an offender from dealing with, or disposing of, their assets. However, a freezing order is specifically made in order to stop access to funds in the immediate term whilst an application is made for a restraining or forfeiture order. Freezing orders are generally always applied for ex parte.
A forfeiture order is typically made once it has been determined that assets have been unlawfully obtained, or used in the commission of a crime. It is common for a forfeiture order to follow an initial freezing order. A forfeiture order usually requires the assets in question to be relinquished to the state or commonwealth. Once made, this type of order is difficult to reverse or challenge.
An examination order can be imposed under both the Confiscation Act and the Proceeds of Crime Act, depending on the nature of the alleged offence and the state in which the offence occurred. It is important to be aware that this can be imposed on you even if you have not been charged with or convicted of any crime (section 98 of the Confiscation Act allows the court to order examination of any person that it deems appropriate).
Under an examination order, the court will require you to submit to an often detailed examination into your financial affairs. This can include the nature and location of any owned property or assets and any related income expenditure or liabilities. It is mandatory to attend this examination and answer all questions asked of you in full.
Pecuniary Penalty Order
A pecuniary penalty order is made following conviction of a proceeds of crime offence. It requires the offender to repay the funds received through the course of their offending to the State or Commonwealth (depending on jurisdiction). Pecuniary penalties survive a bankruptcy order, and accrue interest until the day that they are paid in full. This means that even if you declare bankruptcy, you will still be liable to pay the pecuniary penalties associated with an offence.
Property Substitution Declarations
A tainted property substitution declaration is designed to prevent offenders from evading forfeiture by using assets belonging to a third party in their offending. It may be imposed if the court finds that you had your own assets available to you at the time of your offence, but instead chose to use someone else’s. A declaration can only be made in situations where the court is satisfied that the third party was not connected to the offence, and that their property is not available for forfeiture.
When to seek advice
If you think that you are likely to face investigation under the Proceeds of Crime or Confiscation Acts, it is crucial to act quickly to protect your position.
Madison Branson Lawyers’ Managing Principal Simon Tsapepas is a member of the Supreme Court of Victoria Proceeds of Crime & Confiscation List User Group.
For a confidential discussion, contact our Proceeds of Crime team today.
The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information is for general informational purposes only.