Doogue + George held its 4th AML webinar for lawyers on 18 February 2025 with barrister Abilene Singh giving a presentation on "An introduction to the Confiscation Act 1997". The 4th instalment in a series of 6 AML webinars focussed on Victoria's Confiscation Act 1997 playing a pivotal role in the restraint and forfeiture of property associated with criminal activities in the state. Abilene talked about key aspects of this legislation, its purpose, time limits and the various restraining order regimes.
Abilene discussed the three main types of Restraining Orders. Firstly, charge or conviction-based restraining orders are sought when an individual is charged or convicted of specified offences, targeting property in which the suspect has an interest in, or property is deemed "tainted". Secondly, civil forfeiture restraining orders, which do not require a criminal charge, focussing instead on property suspected of being linked to criminal activity and aimed at preventing the disposal of tainted property.
Perhaps the most intriguing is the unexplained wealth regime. This framework addresses scenarios where an individual possesses assets exceeding their lawful income. If a person cannot satisfactorily explain how they acquired significant wealth (valued at $50,000 or more), authorities can seek orders against their property. Notably, a new pathway under this regime will commence on 20 March 2025, targeting wealth with unclear lawful origins exceeding $200,000.
Significantly, section 40ZAAC (6) sets out: "A respondent's wealth is presumed to have not been lawfully acquired unless the respondent satisfies the court to the contrary." This section reverses the onus whereby the respondent must prove that their total wealth is lawfully acquired.
Litigation under the Act involves various strategies, including opposing restraining orders, seeking exclusions, or varying existing orders to accommodate reasonable living expenses. The legislation imposes strict time limits for applications and responses, reinforcing the importance of prompt legal action. Failure to adhere to these deadlines can result in automatic forfeiture, leaving little room for recourse.
Another significant aspect is the potential for relief from undue hardship, particularly in cases involving serious drug offences. While some restraining orders lead to automatic forfeiture upon conviction, others require court discretion. However, once automatic forfeiture conditions are met, courts have limited ability to intervene, underscoring the need for early legal engagement.
The presentation also touched on procedural nuances. For instance, civil forfeiture proceedings must commence within 90 days of a restraining order; otherwise, the order lapses. Similarly, unexplained wealth orders demand timely applications to avoid forfeiture by default.
Legal practitioners navigating this landscape must be vigilant, given the Act's complexity and stringent timelines.
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Registration for our 5th AML webinar happening on 18 March 2025 at 5PM AEDT is also now open. Click here to register: https://event.webinarjam.com/register/10/96m21t8.