The Victorian Court of Appeal has recently considered the law in relation to hardship relief under the Proceeds of Crime Act 2002 (Cth) (POCA).
Sections 47, 48 and 49 of the POCA provide for forfeiture of property in certain circumstances. In some scenarios the Court will have a discretion to order (or not order) forfeiture. In many cases, if the pre-conditions for forfeiture are met the court must make the forfeiture order. In those cases the Court does not consider whether the forfeiture is fair, just or even proportionate to the offending.
Exclusion from Forfeiture
If the Court determines that property should be forfeited, there are scenarios in which an interest in the property can still be excluded (or saved) from forfeiture. The High Court has previously held that those “circumstances are limited and the conditions strict”.1
Even if the Court is required (under ss 47 – 49) to make a forfeiture order, and even if exclusion is not viable, there is a further limited scenario in which the Court can order that some part of the value of the forfeited property not be forfeited so as to relieve hardship to a dependant of the person whose property has been forfeited. This is governed by s72 of the POCA.
The meaning of hardship
In Abedini v Commissioner of the AFP [2024] VSCA 230 the Victorian Court of Appeal considered the correct approach to s72. What the Court has said about hardship relief under the Proceeds of Crime Act will have universal application across Australia.
At [104] the Court said:
In its ordinary usage, the noun ‘hardship’ properly connotes a degree of deprivation that is more onerous than inconvenience arising from the vicissitudes in daily life. Taken literally, the concept of ‘hardship’ constitutes a condition or set of circumstances that bears hard on a person, and that involves a material degree of privation.
At [106] the Court noted that the objects of proceeds of crime and confiscation laws are to deprive people of the benefits of offences and benefits derived from and used in connection with offences. The judges observed that it would be understandable and common for people deprived of property (particularly family homes) to suffer real discomfort because of the operation of the POCA.
At [107] the Court concluded saying “Taking into account the ordinary meaning of ‘hardship’, which we have discussed, and the statutory context in which the term is used in s 72 of the Act, that kind of consequence would not, ordinarily, and without more, be sufficient to constitute the requisite ‘hardship’ specified in that provision.”
Unusual hardship
It is not enough to demonstrate the usual hardship that is the ordinary consequence of forfeiture. An applicant must show unique personal circumstances (most likely of their dependants) that will make their hardship different to the ‘normal’ hardship suffered by any dependants of people whose property is forfeited under the POCA.
Abedini also provides another reminder of the importance of getting things right the first time. The appellants in that case sought to run arguments for the first time on appeal. At [75] the Court observed:
It is a fundamental principle that a party is bound by the conduct of its case at first instance, so that only in the ‘most exceptional circumstances’ might a party raise a new argument, or seek to rely on a new ground, which was not asserted at first instance.
Specialist guidance should be sought before any application is made. It is important to adduce the best evidence that might support the making of orders relieving hardship; and to do that from the outset of the application.
- Commissioner of the AFP v Hart (2018) 262 CLR 76 at [66] (Gordon J) ↩︎
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