The Victorian Court of Appeal has recently considered the automatic forfeiture regime found in the Proceeds of Crime Act 2002 (Cth).
Hameed v Commissioner of the Australian Federal Police  VSCA 213
The Court concluded that there is no mechanism by which ‘hardship’ can be taken into account when property is automatically forfeited as a result of a conviction of a serious offence.
Sections 17 and 18 of the Proceeds of Crime Act provide that property owned by a person charged with or suspected of committing a serious offence can be restrained (that is, frozen).
Automatic forfeiture for serious offences
Section 92 provides that where the person is convicted of the serious offence all property restrained under sections 17 and 18 is automatically forfeited (unless the person can establish under s94 that the property should be excluded from forfeiture. ((And see also s94A which deals with compensation from forfeiture.)) As the Court in Hameed noted at  In such a case, the Court [is] not required, nor [is] it empowered, to make a forfeiture order. Rather, the legal source of the forfeiture [is] the statute.
The number of offences that are prescribed as serious have, and will likely continue, to grow. Serious offences are defined in s338 and include:
- Most Federal drug offences
- Frauds of more than $10,000
- Most money laundering offences
- Several people smuggling offences under the Migration Act 1958
- Various offences against the Financial Transaction Reports Act 1988 and the Anti-Money Laundering and Counter-Terrorism Financing Act 2006
- Cartel offences
- Terrorism offences
- Copyright offences
- Several offences relating to passports
- Obstructing the Australian Crime Commission
The consequence of automatic forfeiture occurring by operation of statute and not by order of the Court is that neither s48 nor s72 (which allow Courts to ameliorate forfeiture on account of hardship) have any application.
Hardship of innocent parties
Whether this is intentional or not might be questionable. It is difficult to see why hardship to an innocent spouse ought not be taken into account simply where the guilty spouse has committed a copyright offence.
Ultimately the Court was not prepared to bend the Act to provide for a discretion where Parliament has not expressly created one. This is another example of how Proceeds of Crime laws can harshly affect innocent spouses and children.
Court-ordered forfeiture and hardship
Where a Court makes an order for forfeiture under sections 47, 48, 49 of the Proceeds of Crime Act the Court can take hardship of dependents (which may include a spouse and/or children) into account. The Court is able to direct that a sum of money (up to the value of the forfeited property) be paid to the dependents; see section 72.
If you are affected by Proceeds of Crime laws you are welcome to contact me. I do not charge fees for our initial telephone conversation.