Criminal Proceeds Confiscation Act – Automatic Forfeiture

What the law says

Section 162 of the Criminal Proceeds Confiscations Act Queensland states:

This part applies if-

• (a) a restraining order is, or was, granted for property, whether the property of a prescribed respondent or someone else, because of-
  • (i) the prescribed respondent’s conviction of the serious criminal offence; or
  • (ii) the charging, or proposed charging, of the prescribed respondent with the serious criminal offence or a related serious criminal offence; and
• (b) the Supreme Court has not made an order declaring that the property is not subject to automatic forfeiture; and
• (c) the restraining order is still in force when the forfeiture period ends.

Section 163 of the Criminal Proceeds Confiscations Act Queensland states:

1. Property of the prescribed respondent that was acquired after the day that is 6 years before the commission of the serious criminal offence and is restrained under the relevant restraining order is forfeited to the State when the forfeiture period ends.
2. Property of another person that is restrained under the relevant restraining order is forfeited to the State when the forfeiture period ends.
3. The 6 years mentioned in subsection (1) includes periods before and after the commencement of this section.
4. However, before the end of the first 6 months of the forfeiture period, the prescribed respondent may apply to the Supreme Court for an extension of the forfeiture period for up to 3 months.
5. The Supreme Court may extend the forfeiture period by not more than 3 months if it is satisfied it is in the interests of the administration of justice to extend the period in the special circumstances of the case.

Section 161 of the Criminal Proceeds Confiscations Act Queensland states:

In this part-

forfeiture period, for a prescribed respondent, means the later of-

• (a) a period of 6 months starting on the day of the prescribed respondent’s conviction of a serious criminal offence; or
• (b) the 6 months mentioned in paragraph (a) as extended under section 163; or
• (c) if the prescribed respondent appeals against the conviction and the appeal is not decided within the 6 months after conviction, the period ending when the appeal is finally decided.

What the police must prove

Any property subject to a Restraining Order made under section 122 of the Criminal Proceeds Confiscations Act Queensland, will be automatically forfeited to State when the following requirements are met:

1. The Restraining Order is, or was, granted for property, whether the property of a prescribed respondent or someone else, because of-
   • (a) the prescribed respondent’s conviction of the serious criminal offence; OR
   • (b) the charging, or proposed charging, of the prescribed respondent with the serious criminal offence or a related serious criminal offence;AND
2. the Supreme Court has not made an order declaring that the property is not subject to automatic forfeiture;AND
3. the restraining order is still in force when the forfeiture period ends.

Maximum penalty

Effect of Automatic Forfeiture – Criminal Proceeds Confiscations (After Charge or Conviction) Law – Restraining Order over Property – Automatic Forfeiture – Lawyer / Solicitor Article

There is no need for the State to apply to the Court for a Forfeiture Order in order to forfeit the property restrained under a Restraining Order, if the requirements for Automatic Forfeiture are met. If the requirements are met, then the property restrained will be automatically forfeited to the State without the need for a Forfeiture Order of the Court.

The effect of Automatic Forfeiture is that the property will be forfeited to the State absolutely and you will no long have any interest in or right to that property.

The only way that the prescribed Respondent (i.e. the offender) can avoid Automatic Forfeiture is if he or she applies to the Court for a declaration that certain property not be subject to Automatic Forfeiture prior to the forfeiture period lapsing and that declaration is granted.  Click here to find out more.

Another person who has an interest in the property under the Restraining Order can avoid Automatic Forfeiture of his or her interest upon successful application to the Court for a Third-Party Order or a Buy-Back Order.  Click hereto find out more about a Third Party Order and Click here to find out more about a Buy-Back Order.

Which court will hear the matter

The application will be heard in the Supreme Court.

Possible defences

Note that you may apply to the Court to have the forfeiture period of 6 months extended. You will need to show that there are some special circumstances as to why the extension is required.

If successful the period will be extended for a maximum of 3 months, after which your property will then be automatically forfeited to the State. In order to be successful, you will need to show a legitimate basis for your application known as a ground for the application.