Challenging a proceeds of crime confiscation order
Proceeds of crime legislation allows authorities to restrain and confiscate property derived from or used in criminal activity. The regime operates in parallel to criminal proceedings and can apply even without a conviction (under civil forfeiture provisions). Affected persons can challenge orders by demonstrating that their property is not the proceeds of crime.
This is an 8-step workflow for challenging a proceeds of crime confiscation order in Australia. It covers restraining orders, forfeiture orders, and pecuniary penalty orders under the Proceeds of Crime Act 2002 (Cth) and equivalent state legislation. The key is to act quickly — strict time limits apply to exclusion applications.
Before you start
- The restraining order, forfeiture order, or pecuniary penalty order being challenged
- Details of the property restrained and its ownership history
- Evidence of the lawful source of funds used to acquire the property
- Assessment of any related criminal proceedings and their status
The workflow
Identify the legislative regime and order type
Determine whether the order was made under the Proceeds of Crime Act 2002 (Cth) or equivalent state legislation (e.g., Criminal Assets Recovery Act 1990 (NSW), Confiscation Act 1997 (Vic)). Identify the type of order — restraining, forfeiture, or pecuniary penalty — and the grounds on which it was made.
Check time limits for exclusion applications
Identify the applicable time limit for filing an exclusion application or objection. Under the Commonwealth Act, exclusion applications must generally be made within 28 days of being notified of the restraining order. Late applications require leave of the court.
Prepare the evidentiary case
Assemble evidence demonstrating the lawful origin of the restrained property. This includes bank records, tax returns, employment records, business accounts, gift documentation, and any other records tracing the legitimate source of the funds.
Draft the exclusion application
Prepare the application seeking exclusion of the property from the restraining or forfeiture order. The application must demonstrate that the property is not the proceeds or instrument of any offence, or that the applicant has a legitimate interest in the property that should be protected.
Address third-party interests
If the client is a third party (not the person under investigation), prepare evidence that the client acquired their interest in the property in good faith, for sufficient consideration, and without knowledge of the criminal activity. Third-party rights are protected under the legislation.
Apply for variation of the restraining order
If the restraining order is causing undue hardship (e.g., preventing the client from paying living expenses or legal fees), apply for a variation to allow reasonable living and legal expenses from the restrained property.
Attend the exclusion hearing
Present the exclusion application at the hearing. The burden shifts depending on the order type — for conviction-based forfeiture, the onus is on the applicant; for civil forfeiture, the standard of proof and burden allocation vary. Present the financial trail evidence clearly and comprehensively.
Implement the outcome
If the exclusion application is granted, ensure the property is released from restraint. If refused, advise on appeal options and timeframes. If the client has related criminal proceedings, coordinate the proceeds strategy with the criminal defence.
What you will have at the end
An order excluding the client's property from the proceeds of crime restraining or forfeiture order, or alternatively a variation allowing access to funds for living and legal expenses.
Common issues
- Missing the strict time limit for filing exclusion applications
- Insufficient financial records to trace the lawful origin of the property
- Not understanding the different burden of proof in conviction-based vs civil forfeiture regimes
- Failing to coordinate the proceeds challenge with related criminal defence strategy
- Not applying for living and legal expenses variation, leaving the client unable to fund their defence
Run this workflow on a real matter
Quillio analyses proceeds of crime orders and identifies the applicable exclusion grounds and time limits. See /practice-areas/criminal-lawyers or start a free trial.
This workflow covers challenges to proceeds of crime orders under the Commonwealth Act. State and territory legislation may have different procedures, time limits, and exclusion grounds. Always check the applicable state regime.
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