A Review of Confiscation Schemes in Australia

Abstract

Confiscation of illegally obtained proceeds of crime is a key strategy for disrupting criminal activity, especially serious and organised crime. Confiscation of this nature serves a number of purposes. First, it seeks to deter crime by reducing its profitability, as well as diminishing offenders’ ability to finance further criminal activity. In addition, compensation schemes aim to redress imbalances by compensating society for the adverse impacts of criminal activity and reimbursing the state for the costs of incurred in fighting crime. Finally, there is public utility in demonstrating to the community that crime ‘does not pay’.

In Australia, there are two means by which proceeds of crime can be recovered: conviction based recovery, which enables the recovery of assets associated with a crime after a conviction for that crime has been secured; and non-conviction (or civil) based recovery, which allows the restraint and recovery of assets suspected of criminal origins without the necessity of securing a criminal conviction. All Australian states and territories, except Tasmania, have legislation allowing for both conviction and non-conviction based recovery.

This report presents the findings of research undertaken on confiscation schemes and the impact of such provisions on behalf of the Criminology Research Council. The paper sets out the background to confiscation schemes and key developments in this context. There have been recent national developments to examine the effectiveness of legislative efforts to disrupt and dismantle serious and organised crime groups and associations with such groups. In 2009, the Standing Committee of Attorneys General agreed to support a comprehensive national response to organised crime to ensure a coordinated effort to target the proceeds of organised crime groups.

The report provides an overview of the operation of key legislation in each jurisdiction, with particular emphasis on the operation of the Proceeds of Crime Act 2002 (Cth). Available data on each jurisdiction’s confiscation legislation are presented and discussed but the report calls for more systematic processes for recording and reporting information of this nature. The need for ongoing data collection and dissemination is also highlighted.

Keywords: confiscation, proceeds of crime, Australia