Australian Capital Territory Current Acts

CONFISCATION OF CRIMINAL ASSETS ACT 2003 - SECT 9

The notes to this section provide a general overview of the scheme of this Act.

Note 1     Restraining orders

A court may make an order (a restraining order ) preventing the disposal or other dealing with property. A restraining order may also be made to secure a property for payment of an amount that is the value of the person's unexplained wealth (see note 4) or the payment of a penalty order (see note 5).

Property may be restrained even though it is not the offender's property.

Note 2     Confiscation of property on conviction

A court that convicts a person of a relevant offence may make an order (a conviction forfeiture order ) for the forfeiture to the Territory of tainted property in relation to the offence (whether or not the tainted property is restrained).

If a person is convicted of a serious offence (generally an offence punishable by imprisonment for 5 years or more), all restrained property is, by the operation of this Act, forfeited to the Territory (an automatic forfeiture ).

Property may be forfeited even though it is not the offender's property.

Note 3     Confiscation of property without conviction

If a court is satisfied on the balance of probabilities that a person has committed a serious offence, it may make an order (a civil forfeiture order ) for the forfeiture to the Territory of all restrained property even though the person has not been convicted, or the person has been cleared, of the relevant offence.

Note 4     Unexplained wealth orders

A court may, if the court is not satisfied that all or part of a person's wealth is not derived from serious criminal activity, make an order (an unexplained wealth order ) ordering the payment to the Territory of an amount assessed by the court as the value of the person's unexplained wealth.

Note 5     Penalty orders

A court may order the payment to the Territory (a penalty order ) of the value of the tainted property and the advantages and other benefits derived in any way from the commission of a relevant offence and for restrained property be sold to satisfy the penalty order.

Note 6     Exclusion of property from forfeiture and return or compensation for forfeited property

Provision is made for an order that property be excluded from forfeiture (an exclusion order ) and forfeited property can be returned or compensation paid for it in certain circumstances. Provision is also made for the buyback of interests in forfeited property.

Note 1     The following concepts are defined in this part:

              •     "abscond"—see s 16

              •     "cleared", of an offence—see s 17

              •     "convicted"—see s 15 (1)

              •     "derived"—see s 12

              •     "effective control", of property—see s 14

              •     finalised confiscation or criminal proceeding—see s 18

              •     "offence"—see s 13 (1)

              •     "ordinary offence"—see s 13 (2)

              •     "quashed"—see s 15 (3) and (4)

              •     "related" offence —see s 13 (3)

              •     "relevant offence"—see s 13 (2)

              •     "serious offence"—see s 13 (2)

              •     "tainted property"—see s 10

              •     "unclaimed tainted property"—see s 11.

Note 2     Other important concepts include benefits (see s 80), penalty order (see s 82) and relevant court (see s 238).

Note 3     Other important concepts are defined in the Legislation Act

, dict, pt 1, including the following:

              •     indictment

              •     present.