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section heading icon     Australia

This page considers the Australian proceeds of crime regimes, centred on identification and seizure of assets gained through drug trafficking but encompassing financial benefits for convicted criminals from literary and film rights.

It covers -

The following page look in more detail at Australian and overseas restrictions on 'murderabilia'.


The Australian proceeds of crime regime involves federal and state/territory legislation, reflecting the shape of the national Constitution.

The legislation is founded on the premise that profits from criminal activity should be returned to the society whose laws were infringed and that property lawfully obtained but used in the commission of the offence or offences could also be forfeited. It is conviction-based, ie forfeiture of assets and pecuniary penalties can only follow conviction for a criminal offence.

It builds on traditional asset confiscation schemes, in particular seizure of property under the Customs Act 1901. It also reflects international obligations (such as those under the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs & Psychotropic Substances, the Council of Europe Convention on Laundering, Search, Seizure & Confiscation of Proceeds of Crime and bilateral Mutual Assistance in Criminal Matters treaties) regarding "a capacity to trace, freeze and forfeit proceeds of crime, including crime committed overseas".

The federal Proceeds of Crime Act 2002 (POC Act) gives courts the power to restrain and confiscate assets of persons who have engaged in serious criminal activity, or whose property is the proceeds of a criminal offence. It also allows the federal Minister for Justice & Customs to approve use of those funds for crime prevention, law enforcement, drug treatment and drug diversion programs.

From 2003 to 2006 some $17 million was confiscated. (The Northern Territory Government reported in 2005 that it had seized over $2.5 million under its Criminal Property Forfeiture Act in 2003-05.)

The Act is complemented by Division 3 of Part XIII of the Customs Act (CA), which permits a pecuniary penalty order regarding 'prescribed narcotic dealings', irrespective of whether the person against whom the order is sought or made has been convicted of (or even charged with) the offence.

The federal legislation embodies a regime that permits assets to be located and restrains dealings with those assets pending the making of a final forfeiture or pecuniary penalty order. It reflects international obligations regarding tracing, freezing and forfeiture of crime proceeds, including crime committed overseas (eg the 1988 UN Convention against Illicit Traffic in Narcotic Drugs & Psychotropic Substances and bilateral treaties on mutual assistance in criminal matters).

The initial state 'conviction-based' enactments were -

  • Crimes (Confiscation of Profits) Act 1985 (NSW)
  • Crimes (Confiscation of Profits Act) 1986 (Vic)
  • Crimes (Confiscation of Profits) Act 1989 (Qld)
  • Crimes (Confiscation of Profits) Act 1986 (SA)
  • Crimes (Confiscation of Profits) Act 1988 (WA)
  • Criminal Property Confiscation Act 2000 (WA)
  • Crimes (Confiscation of Profits) Act 1993 (Tas)
  • Crimes (Forfeiture of Proceeds) Act 1988 (NT)
  • Criminal Property Forfeiture Act 2002 (NT)
  • Proceeds of Crime Act 1991 (ACT)

Most states have since extended their regimes to encompass confiscation on the basis of civil offences. Current legislation includes -

  • Confiscation of Criminal Assets Act 2003 (ACT) | here
  • Criminal Property Forfeiture Act 2002 (NT) | here
  • Confiscation of Proceeds of Crime Act 1989 (NSW) | here
  • Confiscation of Proceeds of Crime Amendment Act 2005 (NSW) | here
  • Criminal Assets Recovery Act 1990 (NSW) | here
  • Criminal Proceeds Confiscation Act 2002 (QLD) | here
  • Criminal Assets Confiscation Act 2005 (SA) | here
  • Crimes (Confiscation of Profits) Act 1993 (Tas) | here
  • Confiscation Act 1997 (Vic) | here
  • Criminal Property Confiscation Act 2000 (WA)


The federal and state legislation originated in a 1983 invitation by the Australian Police Ministers Council (APMC) to the Standing Committee of Attorneys-General (SCAG) to develop legislation allowing for forfeiture of criminally-derived assets.

A proposal developed by an APMC working party was endorsed by a resolution of the Special Premiers Conference on Drugs in 1985, with model legislation prepared by the Parliamentary Counsels Committee as the basis for uniform legislation across Australia. Each jurisdiction however introduced its own legislation between 1985 and 1993, for example the federal Proceeds of Crime Act 1987 (here).

The 1987 federal POC Act was strengthened in 2001, as the Proceeds of Crime Act 2002. That enactment extended coverage to "indirect proceeds", including book and magazine deals (royalties and one-off chequebook journalism fees), television appearance fees and film rights.

It reflected criticisms, notably in the 1999 Australian Law Reform Commission Confiscation That Counts report, that existing laws were

not fully effective. In particular they have failed to impact upon those at the pinnacle of criminal organisations. With advancements in technology and globalisation, such persons can distance themselves from the individual criminal acts, thereby evading conviction and placing their profits beyond the reach of conviction based laws.

The scope of the Australian regimes has raised criticisms, with the WA Criminal Property Confiscation Act 2000 for example authorising that state's Director of Public Prosecutions to apply to a court for an 'unexplained wealth declaration' against a person, with the court declaring that the person has unexplained wealth if it is more likely than not that the total value of the respondent's wealth is greater than the value of the person's lawfully acquired wealth.

     literary rights

The objectives of the federal POC Act include -

(b) to deprive persons of literary proceeds derived from commercial exploitation of their notoriety from having committed offences
(c) to punish and deter persons from breaching laws of the Commonwealth or the non-governing Territories
(d) to prevent the reinvestment of proceeds, instruments, benefits and literary proceeds in further criminal activity

The 2006 review of the POC Act (aka Sherman Report) commented that

The literary proceeds provisions of the Act have not been utilised to date so it is not possible make any assessment of the impact or effectiveness of the Act in this regard; other than to observe that tthe provisions may be having some deterrent effect.

The state/territory governments do not appear to have used their legislation to seize assets of criminals (or associates) accrued through cheque-book journalism or through merchandising of posters, t-shorts and even stubbie holders.

Speculation about confiscation of payments for television appearances, film rights or autobiographies by figures such as Schapelle Corby thus remain speculation.


There has been no comprehensive studies of literary rights as a subject of the Australian proceeds of crime regimes.

Historical information is provided in the 1999 Australian Law Reform Commission report Confiscation That Counts: A review of the Proceeds of Crime Act 1987, 2006 federal Independent Review of the Operation of the Proceeds of Crime Act 2002 (Cth) report and Brent Fisse's 'Confiscation of Proceeds of Crime: Funny Money, Serious Legislation' in Criminal Law Journal (1989) and 'Confiscation of Proceeds of Crime: Discretionary Forfeiture or Proportionate Punishment?' in Criminal Law Journal (1992).

Works on Australian money laundering studies and practice are highlighted here.

For restitution see Restitution Law in Australia (Sydney: Butterworths 1995) by Keith Mason and J W Carter and other works on the law of obligations such as Rosalie Balkin & J Davis' Law of Torts (Chatswood: LexisNexis Butterworths 2004).

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