What is a 'forfeiture order' and how does it affect me?

In Plain English

A forfeiture order is a court order that says you lose ownership of certain property to the government. This usually happens if the property was involved in some kind of crime. If a court makes a forfeiture order against your property, the Commonwealth (the Australian Government) takes ownership of it.

Detailed Explanation

A forfeiture order is a legal directive issued by a court, typically under legislation like the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002. It results in the loss of ownership of property to the Commonwealth.

Here's a breakdown of key aspects:

1. Grounds for a Forfeiture Order:

   • The Proceeds of Crime Act 1987 outlines that a court may issue a forfeiture order if it is satisfied that the property is "tainted property" in respect of a person's conviction of an offence (s 19(1)). "Tainted property" generally refers to property used in, or derived from, the commission of an offence.
   • The Fisheries Management Act 1991 allows for forfeiture of boats, nets, equipment, and fish used in certain offences related to illegal fishing (s 106).
   • The National Transport Commission (Model Legislation—Transport of Dangerous Goods by Road or Rail) Regulations 2007 allows for forfeiture of dangerous goods and their containers if a person is found guilty of an offence in relation to those goods (s 92).

2. Vesting of Property:

   • When a court makes a forfeiture order, the property generally vests absolutely in the Commonwealth (Proceeds of Crime Act 1987, s 20(1)).
   • For "registrable property" (e.g., land), the Commonwealth gains equitable ownership immediately, but legal ownership only after registration requirements are met (Proceeds of Crime Act 1987, s 20(2)). The Federal Court of Australia Act 1976 also addresses this in the context of security forfeitures (s 58FE(3)).

3. Third-Party Interests:

   • The legislation recognizes that forfeiture orders can affect innocent third parties who have an interest in the property.
   • The Proceeds of Crime Act 1987 allows a person claiming an interest in the property to apply to the court for an order declaring their interest and potentially directing the Commonwealth to transfer the interest to them or pay them an amount equal to its value (s 21).
   • Similar provisions exist in the International Criminal Court Act 2002 (s 158), the International War Crimes Tribunals Act 1995 (s 46A), and the Mutual Assistance in Criminal Matters Act 1987 (s 34C) regarding forfeiture orders registered in Australia based on foreign proceedings.
   • To succeed, the applicant typically needs to demonstrate they were not involved in the offence and acquired their interest without knowledge of the property's tainted nature.

4. Appeals and Discharge:

   • If a forfeiture order is made based on a conviction, and that conviction is later quashed, the forfeiture order may be discharged (Proceeds of Crime Act 1987, s 22).
   • The Proceeds of Crime Act 2002 outlines procedures for confirming or discharging forfeiture orders when a conviction is quashed (ss 81-85).

5. Hardship and Exclusion Orders:

   • The Proceeds of Crime Act 2002 allows courts to make orders to relieve hardship to dependents affected by a forfeiture order (s 72).
   • Courts can also make "exclusion orders" to exclude certain interests in property from forfeiture if specific conditions are met (s 73).

6. Enforcement and Disposal:

   • The Commonwealth, usually through the Official Trustee, is responsible for managing property subject to a forfeiture order.
   • The property cannot be disposed of before a certain time, and the Official Trustee has specific duties regarding its management (Proceeds of Crime Act 1987, s 20(3)).
   • The Fisheries Management Act 1991 states that forfeited property becomes the property of the Commonwealth and must be dealt with according to the Minister's directions (s 106AAB).