Advising in confiscation and proceeds of crime matters – some early considerations

Legislation enabling the Executive to confiscate profits derived from criminal activity has been introduced and developed over the last 30 or so years. The legislation is intended to be imbalanced, and those subject to it face a steep uphill battle resisting freezing orders, examinations and ultimately confiscation orders. The legislation has become even more far-reaching and difficult to resist, as the Executive responds to decisions affecting its operation. In NSW, this was recently reflected in the Confiscation of Proceeds of Crime Legislation Amendment Act 2022 and the Crimes Amendment (Money Laundering) Act 2022. The amendments include, amongst other provisions, automatic forfeiture in NSW following conviction for a serious offence, the ability to make ‘drug trafficker declarations’ leading to forfeiture of property and wide-ranging unexplained wealth orders.

Despite court consideration, many aspects of how the legislation operates remain substantially untested.

Arguably, the most potent of the confiscation instruments is the Commonwealth Proceeds of Crime Act 2002 (‘POCA’). New South Wales has its own legislation in the Confiscation of Proceeds of Crime Act 1989 (‘CPCA’). This article will focus on the regime for confiscating criminal proceeds pre or without criminal conviction.

The statutes provide wide and varying interim and interlocutory powers to law enforcement officials to maximise the prospects of them obtaining final relief for the recovery of assets and the imposition of penalties. It is notable that the regime is not just directed at forfeiture of assets, but also the imposition of other penalties (e.g. pecuniary penalty orders) and other measures (e.g. unexplained wealth orders) that have the effect of depriving the person of ill-gotten gains where tracing those gains into specific property is not possible or too difficult.