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Criminal Assets Confiscation – Can I lose my home?

criminal assets confiscationIn 2015, the Attorney General John Rau introduced the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill to parliament.

The bill gives the Prosecution unprecedented power to pursue, seize and have forfeited the assets of repeat and high-level drug offenders.

As the Criminal Assets Confiscation Act 2005 presently stands, if a person is charged with a serious offence then the Prosecution can apply to the Court to restrain and later forfeit certain property used in the commission of the offence or owned by that person. If the person can show, however, that the property is not an instrument of an offence and that it was not purchased using the proceeds of crime then it is possible to exclude the asset from forfeiture.

The Bill will amend the Act, however, by completely removing the ability of “prescribed drug offenders” to save their property from forfeiture. It also changes the law so that all property a person owns will be forfeited, whether it was used in the commission of an offence or not.  All that a prescribed offender will be allowed to keep is “what a bankrupt would be allowed to keep”.

A prescribed drug offender is a person who is convicted of:

  • One commercial drug offence; or
  • Three or more non-commercial drug offences within a 10-year period

Commercial drug offences include trafficking, cultivating and manufacturing commercial and large commercial quantities of drugs. In terms of non-commercial drug offending, the clock stops during any time spent in gaol meaning that the crucial ten-year period may actually last for much longer.

In his second reading speech, the Attorney said the following:

“Under this proposal, which targets high-level and major drug trafficking offenders, all of the convicted offender’s property can be confiscated, whether or not it is established as unlawfully acquired and whether or not there is a level of proof about any property at all”

The Bill has not become law yet, however it has passed both houses in the South Australian Parliament. It may become law in the very near future.

An Example

Henry is convicted of trafficking a commercial quantity of a drug in Adelaide where Henry lives in a rental property. Henry owns a holiday house at Goolwa which he inherited many years ago from his grandfather. Henry takes his family to the house during school holidays. No illegal activity has ever occurred in the holiday house so it is not “an instrument of the offence”. As Henry inherited the property lawfully it is not the proceeds of crime. As the law presently stands, Henry would have grounds to exclude the house from forfeiture should proceeding be brought by the Prosecution.

If the Bill passes, however, things would be very different for Henry. Henry would have no grounds to save his holiday house at Goolwa from forfeiture. In fact, the prosecution will have power to seize every piece of property that Henry owns – his holiday house, his car, his savings, his furniture etc.

Expert Advice and Representation

Criminal Assets confiscation is a complex and developing area of law that requires attention to detail and expert legal knowledge. Williams Barristers and Solicitors have an expert team of lawyers that keep abreast of all developments in the law. If you have an Criminal Assets Confiscation matter call Williams Barristers and Solicitors on 8451 9040 to make an appointment with one of our expert Criminal Assets lawyers.

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