Recovering the proceeds of crime
Proceeds of crime are assets gained from criminal activity. They can be derived directly (e.g. stolen property or cash received from the sale of drugs) or indirectly (e.g. houses, cars, boats or motorcycles bought with cash earned from criminal acts).
We work to ensure that crime doesn’t pay, literally, by confiscating the proceeds of crime. This means we can:
- financially incapacitate those engaged in career criminal activity
- deter crime by taking away the financial incentive
- recoup criminals' illegal gains for the people of Queensland.
In Queensland, the Criminal Proceeds Confiscation Act 2002 enables confiscation of:
- property derived directly or indirectly from criminal activity
- property used in committing an offence, even if it was lawfully acquired.
The two schemes for restraining such property are:
- criminal confiscation, where a person has to be convicted of a criminal offence before property derived from, or used in, illegal activity can be confiscated. This scheme is administered by the Director of Public Prosecutions (DPP)
- civil confiscation, where a person's property can be restrained on the basis of reasonable suspicion of serious crime-related activity. Civil confiscation makes it easier to seize assets, as it is not necessary for there to be an actual or imminent criminal charge or conviction. We are responsible for administering this scheme.
Our involvement has the following advantages:
- recovery of the proceeds of crime is separated from the law enforcement investigation function, so that allegations of trade-offs between criminal charges and forfeiture of assets do not arise
- confiscation of assets is separated from the DPP’s criminal prosecution function, thus removing the potential for plea bargaining to seek lesser sentences or charges in exchange for forfeiting assets
- our accountability to the bodies that oversee our work ensures that we use our powers and conduct investigations appropriately. (See Who watches the watchdog?)
In broad terms the civil confiscation scheme contained in the Criminal Proceeds Confiscation Act 2002 provides:
- As an initial step, a restraining order over all of a person’s property may be made upon the Supreme Court being satisfied that there is a reasonable suspicion that, in the past 6 years, the respondent engaged in serious crime related activity i.e. activity involving an indictable offence carrying a maximum penalty of at least 5 years imprisonment.
- The restraining order has a life of 28 days and continues only in circumstances where the State makes an application for a forfeiture order or a proceeds assessment order within the 28 day period.
- The State may seek one or both of a forfeiture order and/or a proceeds assessment order. A forfeiture order is sought in relation to property which is alleged to have been ‘illegally acquired’. A proceeds assessment order is a pecuniary order to recover the value of proceeds derived from illegal activity. Property of a respondent which is legally acquired may be forfeited to satisfy a proceeds assessment order.
- Property honestly acquired is afforded protection from forfeiture through the mechanism of exclusion. A respondent or innocent third party may seek to exclude from forfeiture property which can be shown to have been legally acquired.
Proceedings under the Criminal Proceeds Confiscation Act 2002 are civil proceedings conducted in the Supreme Court and issues of fact are decided on the balance of probabilities.
Forfeited property is sold by the Public Trustee of Queensland and paid to the consolidated fund. These monies are then available for the government to use for education, hospitals, roads or any other item of government expenditure for the benefit of the people of Queensland.