Recent changes in the Commonwealth asset confiscation legislation
The criminal asset confiscation legislation is being increasingly designed to put financial pressure on criminals by way of seizing their assets and consequently kerbing their ability to commit further crime.
Most notably, there are proposed amendments as tabled on 11 February 2015 to the Criminal Asset Confiscation Bill.
These amendments are in addition to recent decisions which have impacted upon the draconian interpretation of the legislation.
Criminal Asset Confiscation Prescribed Drug Offenders Amendment Bill 2015
The bill, tabled in parliament in February 2015, makes various notable changes. In particular, it provides for the confiscation of property of certain drug offenders as additional punishment for their offending.
Under the revised legislation, in particular Section 6A, a prescribed drug offender is a person that is convicted of a commercial drug offence or has at least two other convictions for a prescribed drug offence committed on two separate occasions within a period of 10 years.
This definition also operates retrospectively meaning that previous convictions for drug offences that occurred prior to this legislation being acted, will be allowed to be taken into account as to whether a person is a drug offender.
The definition of a drug offender has implications under the Act, in that the property may be confiscated as an additional punishment.
The second significant change to the bill introduces acts of some reprieve for potential offenders facing asset confiscation procedures. Under the legislation, if a person provides cooperation with the authorities and relates directly to serious and organised crime offences, then that property maybe excluded from any forfeiture.
The obvious design of this amendment is for the persons to provide information in the form of evidence against other organised crime activities with a view of saving their assets.
Hall v DPP
On 23 February 2015 the Full Court handed down a decision effecting the time frame to which automatic forfeiture occurs.
The interpretation of the legislation and indeed now supported by the Full Court, is that the six months being the time in which automatic forfeiture occurs starts from the date of conviction which is the day on which the defendant enters a plea and the allocator was administered.
More importantly, it indicates that extensions of times as allowed for in the Limitation of Actions Act is not applicable.
The result of this interpretation is that if an applications is not made to exclude property the subject of a restraining order within six months from the date of conviction, that property automatic forfeits to the Crown and there is no further action that can be taken to avoid this.
Restraining Legal Costs
It is common ground under the legislation that restraining orders initiated by the Crown can include moneys as held in bank accounts or indeed a solicitor’s trust account.
Legislation provides amounts for the exclusion of funds if it is to meet day to day living expenses and a defendant is unable to meet those expenses through any other means because of financial hardship.
Importantly, an exclusion from any restraining order under the act is not allowed for the purpose of meeting legal costs.
This was reaffirmed in the matter of Siddique v DPP. It was a Victorian decision under their confiscation legislation.
However, it was determined under that legislation that a solicitor holding moneys in his or her trust account to secure fees to be incurred for acting for a client, then they hold leave of those moneys to secure payment of those fees.
In such circumstances, those fees may be subject to an exclusion order under the legislation.
Consequently, when dealing with asset confiscation matters, costs agreements need to be carefully drawn to protect moneys in the solicitors trust account and maybe the subject of a restraining order which could result in them no longer being available to pay the said legal fees.
Criminal asset confiscation legislation is increasingly being used by the Crown as a means of tackling not only organised crime, but crime in general.
The effect of such restraining orders, forfeiture orders and pecuniary penalty orders, is far reaching and has the catastrophic effects of someone losing their worldly assets. Consequently, it is now more important than ever to seek urgent legal advice should asset confiscation proceedings be brought against you. Any delay in time in obtaining such advice could result in the dire consequences of you losing your house with on right of reprisal.