Criminal Assets Confiscation
Can the Government Take My Property? Criminal Assets Confiscation in South Australia
Yes. Under South Australia’s Criminal Assets Confiscation Act 2005, the Court can restrict dealings with property and, in some circumstances, property can be forfeited to the Crown. This can include property that was acquired lawfully and property held by someone other than the person charged.
Confiscation proceedings can affect a home, vehicle, bank account, cash, jewellery, cryptocurrency, business property and other assets. They can also affect a spouse, parent, co-owner or another person who contributed to an asset but is not registered as its owner.
The legal pathway and the deadlines depend on the type of order sought. If you have received a restraining order, a forfeiture application or notice that you may be an interested party, obtain advice promptly. Waiting for the criminal charge to finish can significantly limit the options available.
Websters Lawyers can advise the person charged and can also act for a family member or other interested party, provided there is no conflict of interest. Your initial phone discussion is free.
Questions answered on this page
- How does criminal assets confiscation happen?
- What is the difference between property, proceeds and an instrument of an offence?
- What does a restraining order do?
- Will I know that the DPP is applying for a restraining order?
- Can property be restrained if I do not own it?
- Can I still live in my house or drive my car?
- Should I keep paying the mortgage?
- What if I cannot pay living or business expenses?
- Can property be excluded from a restraining order?
- I am not charged. How can my property still be affected?
- What is forfeiture?
- What is a prescribed drug offender?
- Can I defend a forfeiture application?
- A forfeiture order has already been made. Is it too late?
- Will my spouse or another co-owner lose their share?
- Can forfeited property be bought back?
- What is a pecuniary penalty order?
- Can confiscation affect the sentence in my criminal case?
- When should I speak to a lawyer?
How does criminal assets confiscation happen?
The Director of Public Prosecutions, usually called the DPP, acts on behalf of the State. A confiscation matter commonly has two stages:
- Restraint: the Court makes an order preventing specified property from being disposed of or otherwise dealt with except as the order permits.
- Forfeiture: ownership of property passes to the Crown under a court order or by operation of the Act if the relevant statutory conditions are met.
There can also be freezing orders affecting accounts, orders giving an administrator control of property, examinations about ownership and financial affairs, and pecuniary penalty orders requiring money to be paid to the Crown.
What is the difference between property, proceeds and an instrument of an offence?
“Property” is defined broadly. It can include real estate, vehicles, cash, bank accounts, shares, jewellery, cryptocurrency and many other assets.
“Proceeds” are property or benefits derived, directly or indirectly, from an offence. An “instrument” is property used in, or intended to be used in, connection with an offence. The distinction matters because the DPP does not rely on the same legal basis in every application. In some cases, a connection between the property and offending is central. In prescribed drug offender matters, property may be affected even if it was acquired lawfully and had no connection with the offence.
What does a restraining order do?
A restraining order prevents specified property from being disposed of or otherwise dealt with except in a way permitted by the order. For a house, that may prevent a sale, transfer or further borrowing against the property. For a vehicle, it may prevent a sale or transfer. Dealing with restrained property in breach of the order can itself be a criminal offence.
Will I know that the DPP is applying for a restraining order?
Often notice is given before the application is heard. However, the Court can make an order without advance notice in some circumstances. If that happens, the owner and others with an identified interest may receive the order and supporting material afterwards.
Can property be restrained if I do not own it?
Potentially. The Act is not limited to property registered in the name of the person charged. It also deals with property under a person’s “effective control”. That can require careful consideration of how an asset is held, funded and used, including through companies, trusts or family arrangements.
Can I still live in my house or drive my car?
A restraining order does not always require a person to leave a home or surrender possession of every asset. Whether an asset can continue to be used depends on the terms of the order and any further orders made by the Court. You should not assume that ordinary dealings are permitted. Obtain advice about the precise wording before selling, transferring, refinancing, giving away or altering an interest in restrained property.
Should I keep paying the mortgage?
Do not change or stop mortgage payments without advice. The appropriate course depends on who owns the property, whose interest is restrained, the loan obligations and the risk that additional payments may increase an interest exposed to forfeiture. A lawyer can advise after reviewing the title, loan and restraining order.
What if I cannot pay living or business expenses?
The Court may permit reasonable living, family or business expenses, or certain debts incurred in good faith, to be met from restrained property. An application has formal requirements, including notice to the DPP and financial disclosure. Restrained property generally cannot be used to pay legal costs for the criminal or confiscation proceedings under this expense provision.
Can property be excluded from a restraining order?
In some circumstances, yes. The available grounds depend on why the order was made, whether the person charged has been convicted, whether they could become a prescribed drug offender, the source and use of the property, and who is applying. Security may sometimes be offered instead. An exclusion application is not a generic form: it must address the statutory pathway applying to the particular property.
I am not charged. How can my property still be affected?
A spouse, partner, parent, relative, co-owner, lender or contributor may have an interest in restrained property even though they were not involved in any alleged offending. Common examples include:
- a jointly owned home;
- mortgage payments made by a spouse or partner;
- money advanced by a parent towards a deposit or renovations;
- an undocumented family loan;
- property registered in one person’s name but acquired or maintained with another person’s funds; or
- company or trust property said to be under the effective control of the person charged.
If the DPP knows about your interest, you may be notified as an interested party. If the DPP does not know, you may need to apply to participate and put evidence of your interest before the Court. Bank records, loan documents, conveyancing records, messages, tax records and evidence about the parties’ intentions can become important.
Do not assume that the person charged can adequately protect your separate interest. Their position may be different from yours and there may be a conflict of interest. Independent advice can be necessary.
What is forfeiture?
Forfeiture is different from restraint. Restraint preserves property while proceedings continue. Forfeiture transfers property to the Crown, either under an order made by the Court or by operation of the Act.
The DPP may rely on different provisions, each with different requirements and possible responses. The three pathways most likely to concern individuals are:
Forfeiture orders under section 47
The DPP can apply for a forfeiture order where the statutory conditions are met, including cases involving property alleged to be proceeds of a serious offence or an instrument of a serious offence. Depending on the pathway relied upon, questions may include the connection between the property and the alleged offending, the basis and duration of the restraining order, the owner’s conduct and the interests of other people.
Automatic forfeiture after conviction
Restrained property can be forfeited by operation of section 74 after a person is convicted of a serious offence and the relevant statutory conditions are met. The “conviction day” may be earlier than sentencing, including when a guilty plea is entered or a person is found guilty. That is why advice should be obtained before the criminal matter is finalised.
An application to exclude property or extend the relevant period may need to be filed before the statutory deadline. The Court’s ability to assist after time has expired can be limited.
What is a prescribed drug offender?
A person can become a prescribed drug offender following conviction for specified serious drug offending or because of the number and timing of qualifying convictions. When that occurs, a deemed forfeiture order can apply immediately to property owned by or under the effective control of that person on the conviction day, subject to statutory exceptions.
This is especially serious because the property need not be proceeds of crime or an instrument of the offence. Lawfully acquired property can be affected. Whether a person meets the statutory definition should be checked carefully against their charges and conviction history.
Can I defend a forfeiture application?
There may be grounds to oppose forfeiture or to seek an exclusion, but the answer depends on the provision used by the DPP and whether the applicant is the person charged, an owner, a dependant or another interested party. Relevant issues can include:
- whether the statutory conditions for forfeiture are met;
- whether the property is proceeds or an instrument of an offence;
- whether the property was acquired lawfully;
- whether another person has a separate legal or equitable interest;
- whether the person charged owned or effectively controlled the property;
- whether hardship or the ordinary use of the property is relevant under the provision relied upon; and
- whether an exclusion application was filed within time.
Not every factor is available in every case. In particular, the rules applying to a prescribed drug offender are more severe than the ordinary proceeds-and-instruments regime.
A forfeiture order has already been made. Is it too late?
Not always, but urgent advice is essential. In limited circumstances a person can apply after forfeiture to exclude an interest or seek other relief. The available application, time limit and need for the Court’s permission depend on how forfeiture occurred and why the person did not act earlier. Delay can remove options that might otherwise have been available.
Will my spouse or another co-owner lose their share?
Not necessarily. The effect of forfeiture depends on whose interest is forfeited and the orders made. A spouse or other co-owner may retain a separate interest but find themselves co-owning property with the Crown or facing steps to sell or realise the asset. They may be able to seek exclusion, establish the nature and value of their interest, buy back the forfeited interest or buy out another interest. The correct step depends on the statutory pathway and the evidence of ownership.
Can forfeited property be bought back?
Sometimes. The Act contains mechanisms for buying back or buying out interests in forfeited property. Real estate may involve valuation and negotiation with the Crown. Other assets may be sold. A former owner should obtain advice about whether a statutory buy-back process applies rather than assuming they can simply repurchase the asset.
What is a pecuniary penalty order?
A pecuniary penalty order, or PPO, is an order requiring a person to pay money to the Crown. It is different from forfeiture of a specified asset. The amount can relate to benefits derived from offending or the value of an instrument, with statutory adjustments for matters such as property already forfeited and relevant fines.
Whether an order must be made, how the amount is calculated and what can be contested depend on the particular application. Financial records, asset values and the relationship between any forfeiture and the proposed penalty should be reviewed carefully.
Can confiscation affect the sentence in my criminal case?
Yes, the criminal and confiscation proceedings can interact. The Court cannot simply reduce a sentence because property has been forfeited in every case. However, the Act permits some aspects of a person’s cooperation in resolving confiscation proceedings to be considered. Decisions made in the criminal matter can also trigger confiscation consequences. The two matters should therefore be planned together rather than dealt with in isolation.
When should I speak to a lawyer?
As soon as you receive notice of a restraining order or confiscation application, and ideally before a plea or finding of guilt in the criminal case. Early advice allows time to identify the provision being used, preserve evidence of ownership and contributions, consider exclusion or expense applications, and meet any strict deadline.
Websters Lawyers can assist with criminal charges, restraining orders, forfeiture proceedings, pecuniary penalty orders and the interests of spouses, parents and other third parties. Where separate interests create a conflict, we will explain who we can act for and whether another person should obtain independent advice.
Contact us for a free initial phone discussion about what has been served, which assets are affected and what needs to happen next.
Legislation
Criminal Assets Confiscation Act 2005 (SA) The Act governs freezing orders, restraining orders, forfeiture, pecuniary penalty orders, exclusions, examinations and related procedures. |
Websters Lawyers has an outstanding team of criminal lawyers who can assist you in all aspects of criminal law, including confiscation of assets. Contact us today for a free initial phone consultation. Because the sooner you act, often the better off you’ll be.
