Exclusion from forfeiture If a forfeiture order was made under section 47 or 49 POCA, a court must make an order excluding a specified interest in property from forfeiture if the court is satisfied that the applicant’s interest in the property is neither of the following: proceeds of unlawful activity;[1] an instrument of any serious […]Continue reading
Compensation Orders The purpose of compensation orders is to compensate for proportions of property not derived or realised from the commission of any offence. A court that made a forfeiture order (or that is hearing, or is going to hear an application for a forfeiture order) must make a compensation order[1] if: a person has […]Continue reading
Pecuniary Penalty Orders (PPO) PPO’s are designed to create a civil debt or a judgment debt against an offender when there are not enough assets to satisfy a forfeiture order. It prevents a criminal who is currently relatively impecunious from being subject to proceeds of crime action in relation to future activities. A court must […]Continue reading
Literary Proceeds Orders Literary Proceeds Orders are rarely (if ever) used, and the sections are drafted in a similar format to PPO’s. They are made on the basis of depriving people who have made literary proceeds in relation to offending. There is no requirement that a person has been convicted of the offence. A court […]Continue reading
Unexplained Wealth Orders As previously mentioned, unexplained wealth orders are relatively new.[1] Being new combined with higher complexity and more manpower that has to go into proving the requisite requirements of an unexplained wealth order means that they are not used as much as the regular ss 17, 18, 19 restraining orders and subsequent ss […]Continue reading
Miscellaneous Provisions Proceedings for an application for a restraining order, forfeiture order, PPO, literary proceeds order or an unexplained wealth order are civil, not criminal in nature.[1] The rules of construction that apply only to criminal law do not apply to the POCA.[2] The rules of evidence that apply only in criminal proceedings do not […]Continue reading
Revoking an Ancillary Order If a person is affected by an ancillary order[1] and the order was heard without notice,[2] the person can apply to revoke the order within 14 days after the person was notified of the ancillary order.[3] While the application is on foot, the ancillary order is stayed until the court determines […]Continue reading
Glossary Note: Within the POCA, words that have a definition are denoted with a * next to them. Section 338 POCA contains the definitions. Effective Control It is not necessary that a person has a legal or equitable estate or interest in the property, nor is it necessary that a person has a right, power, […]Continue reading
Things relevant to all forfeiture orders If the application relates to a person’s conviction of an indictable offence, the forfeiture application must be made within 6 months[1] of the ‘conviction day’.[2] It is incumbent upon the AFP to provide notice of an application of a forfeiture order to:[3] if the order is sought relating to […]Continue reading
Proceeds of Crime Sources of Information and Disclosure (s 266A) Chart
