Section 49 Forfeiture Orders – Property suspected of being proceeds of indictable offences etc. (flowing on from section 19 (in rem) restraining orders).

After a section 19 restraining order has been in place for 6 months, the AFP can apply for a forfeiture order.

A court must make an order that property specified in the order is forfeited to the Commonwealth if:

• The application is heard before a court with proceeds jurisdiction;
• The AFP (also being the responsible authority for the restraining order that covers the property) applies for the forfeiture order pursuant to section 49 POCA;
• The restraining order has been in force for at least 6 months;[1]
• The court is satisfied that one or more of the following applies:[2]
  • The property is proceeds of one or more indictable offences;
  • The property is an instrument or one or more serious offences;
• The court is satisfied that the AFP have notified people with an interest in the property.

[1] The 6 months requirement can be waived if the order is made by consent, see s 316 POCA.

[2] Or the property is proceeds of one or more foreign indictable offences; or the property is proceeds of one or more indictable offences of Commonwealth concern.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

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