Proceeds of crime in Queensland

Two schemes, run by different agencies

The civil confiscation scheme is run by the Crime and Corruption Commission. It does not depend on a charge or a conviction. The CCC obtains a restraining order in the Supreme Court, and then applies for one or more of:

• A forfeiture order, where the court is satisfied the person engaged in serious crime related activity within the previous 6 years. The restrained property is forfeited to the State and sold by the Public Trustee, whether or not it was bought with the proceeds of anything.
• A proceeds assessment order, a money judgment for the assessed value of the benefits derived from illegal activity over the previous 6 years.
• An unexplained wealth order, requiring you to satisfy the court that your wealth was lawfully acquired. If you cannot, the value is recovered.

The serious drug offender confiscation order scheme applies where a person is charged with a qualifying drug offence. Property is restrained, and if the person is convicted and a serious drug offence certificate issues, the restrained property is forfeited to the State regardless of how it was acquired. That is the harshest provision in Queensland confiscation law.

There is also a conviction based scheme, and the Commonwealth operates its own regime under the Proceeds of Crime Act 2002 (Cth), run by the AFP led Criminal Assets Confiscation Taskforce.

What a restraining order actually does

A restraining order stops you dealing with the property. In practice that means you cannot sell, mortgage, transfer or spend it. Bank accounts are frozen, the title to real property is caveated, and vehicles cannot be transferred.

It is frequently made ex parte, meaning without notice to you, so the first you know is when the accounts stop working. The order can also capture property held by a spouse, a company you control, or property you gifted away.

You can apply to exclude property from the restraining order on the basis that it was lawfully acquired and is not the proceeds of anything. You can also apply for a living and legal expenses allowance out of restrained funds, but the court will require detailed financial disclosure to grant it, and the amount allowed for legal costs is usually modest.

Deadlines in this jurisdiction are short and are not forgiving. A civil restraining order is time limited, and any further application must be brought within the statutory period.

How this interacts with the criminal charge

These proceedings run in parallel and they pull in opposite directions. The confiscation proceeding requires you to explain the source of your wealth. The criminal proceeding gives you a right to silence. Anything filed in an affidavit in the confiscation matter can find its way into the criminal brief.

The usual approach is to seek a stay of the confiscation proceeding, or at least the parts of it requiring your evidence, until the criminal charge is resolved. Whether that is granted depends on the overlap and the prejudice. It should be considered on day one, not after affidavits have been sworn.

Third parties are often the biggest losers. A parent who lent money for a deposit, a spouse who part owns the home, or a business partner all have standing to apply for exclusion, and each should get independent advice.

What to do when the letter arrives

1. Do not deal with any asset. Dealing with restrained property in breach of an order is an offence.
2. Collect the provenance documents immediately: payslips, tax returns, loan approvals, contracts of sale, gift deeds, inheritance records. Confiscation cases are won on paperwork and lost on gaps.
3. Apply for an exclusion order for anything demonstrably lawful, and for a legal and living expenses allowance if you need one.
4. Coordinate the confiscation and criminal strategies. Run them separately and one will damage the other.