Proceeds of Crime & Asset Confiscation

The civil-standard trap: losing assets without a conviction

Criminal Assets Recovery Act 1990 (NSW): the Supreme Court may make assets forfeiture orders and proceeds assessment orders on the application of the NSW Crime Commission — proved on the balance of probabilities, with no requirement that anyone be charged with, or convicted of, any offence.

This is the fact that organises everything else on this page. Confiscation under the NSW Act is civil litigation. The Crime Commission does not have to prove an offence beyond reasonable doubt; it has to satisfy the Supreme Court, on the balance of probabilities, that a person has engaged in serious crime related activity or that property is the proceeds of such activity. No charge is required. No conviction is required. An acquittal in the criminal courts does not prevent confiscation of the same assets — the standards of proof are different, and the proceedings are independent.

Anyone treating the confiscation matter as an afterthought to the criminal one has misunderstood which proceeding may prove harder to defend.

Restraining orders: assets frozen first

Confiscation litigation almost always opens with a restraining order — a freezing order over bank accounts, real estate, vehicles, business interests and other property, preventing any dealing with it while the substantive proceedings run. Three features define how these orders operate in practice:

• They are commonly made without notice. The first a person learns of the proceedings is often the order itself — accounts inaccessible, settlement of a property stopped, a business unable to pay its suppliers.
• They precede any conviction — and frequently any charge. The restraint is interlocutory; the confiscation case follows.
• They reach third parties. Property held by spouses, family members, companies and trusts can be restrained where it is said to be subject to another person's effective control. People who face no allegation of their own can find their assets inside the orders.

NSW and Commonwealth: two regimes, different logic

NSW — Criminal Assets Recovery Act 1990

The NSW regime, administered by the NSW Crime Commission, is the purer form of non-conviction-based confiscation: civil standard throughout, no charge needed, with assets forfeiture orders directed at the property and proceeds assessment orders directed at the person — a money judgment for the assessed value of proceeds derived from criminal activity. The Commission's compulsory examination powers run alongside, which is why a restraining order and an examination summons often arrive as a pair.

Commonwealth — Proceeds of Crime Act 2002

The Commonwealth Act, enforced by the AFP-led Criminal Assets Confiscation Taskforce, contains both conviction-based and non-conviction-based machinery: restraining orders, forfeiture orders, pecuniary penalty orders and automatic forfeiture in some circumstances. It travels with Commonwealth prosecutions — drug importation, large-scale fraud, money laundering — and has its own procedural architecture, including examination powers of its own.

Which regime applies shapes everything: the applicant, the court, the available orders, the exclusion pathways and the funding of the defence. Matters can attract both.

Unexplained wealth orders

Both regimes contain unexplained wealth provisions: orders requiring payment of the amount by which a person's wealth exceeds what can be shown to have been lawfully acquired. Their defining feature is a practical reversal of onus — once the statutory threshold is engaged, it falls to the person to demonstrate the lawful origin of their wealth, item by item, often across years of financial history. Meeting that onus is forensic accounting work as much as legal work, and it rewards early, organised preparation.

Exclusion applications and legal expenses

Restraint is not the end of the argument. The Acts provide pathways to have property excluded from restraining and forfeiture orders — broadly, by establishing that the property is not the proceeds of crime, or that an innocent third party's interest should not be caught. Exclusion applications carry their own onus and their own evidentiary disciplines: what is sworn in support of an exclusion application is evidence, and it must hold together with everything said in any parallel criminal matter.

Funding the defence needs equally early attention. Provision for legal expenses out of restrained property is tightly limited — under the NSW Act restrained assets generally cannot fund the legal costs of the confiscation proceedings themselves, and under the Commonwealth Act legal aid arrangements largely replace access to restrained funds. How representation will be paid for is a structural question to resolve at the start, not a detail for later.

How Lenz Legal approaches confiscation matters

Confiscation proceedings rarely arrive alone. They feed from drug supply and importation matters and white-collar investigations, and they interlock with Crime Commission examinations. Dean Lenz's practice covers that whole intersection, and the firm is briefed by solicitors whose clients' assets have been restrained as well as acting directly.

The approach: establish precisely what is restrained and under which regime, deal with the funding question structurally, identify the exclusion arguments early, and coordinate every affidavit and every examination answer with the criminal proceedings — because in this field, the two cases are tried on the same facts to different standards, and what is said in one is never said only in one.

Proceeds of crime — your questions answered