FORFEITURE OF PROPERTY

AUSTRALIAN FEDERAL POLICE

Proceeds of Crime Act (Cth) (POCA) 1987 and 2002.

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The 1987 Act is strictly conviction based, however pursuant to the 2002 Act, forfeiture can either be conviction or non conviction based.

Conviction based forfeiture is effected when the offence is deemed a serious offence as defined under POCA. It is arguable that statutory forfeiture within this Act is its most draconian feature. Should the offence be deemed to be a ‘serious offence’ and provided a restraining order is in place at the end of six months following the date of conviction, then by virtue of section 92 of the 2002 Act, the property subject to that restraining order is automatically forfeited (unless excluded). This is effected without a hearing and pursuant simply by operation of the statute in question.

An extension of the six month limitation can be granted for only for an additional nine months. Thus with the extension, statutory forfeiture is effected fifteen months after conviction.

When the conviction for an offence is a Commonwealth Offence, but not a serious offence, section 19 of POCA allows for forfeiture upon a similar process to that found under COPOC. Relief against POCA, by way of exclusion from forfeiture, may occur by application in a number of ways both pre and post forfeiture. However any application to exclude or exempt a property from forfeiture must be made within the statutory protocol set out by POCA. A failure to follow this statutory protocol, as recently occurred in Western Australia (Commissioner of the Australian Federal Police v Al Zubaidy [2024] WADC 110), can have drastic consequences.