Section 56 of the Criminal Proceeds Confiscations Act Queensland states:

(1) The State may apply to the Supreme Court for an order (forfeiture order) forfeiting to the State particular property restrained under a restraining order.

(2) The application may include particulars of any encumbrance over the restrained property that an appropriate officer considers an encumbrancee took in good faith, for valuable consideration, and in the ordinary course of the encumbrancee's business.

Section 57 of the Criminal Proceeds Confiscations Act Queensland states:

(1) The commission or, if the application is made for the State by a police officer, the commissioner of the police service must give written notice of the application to each person whose property is restrained under the restraining order and anyone else the commission or the commissioner of the police service considers has an interest in the restrained property.

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Section 58 of the Criminal Proceeds Confiscations Act Queensland states:

(1) The Supreme Court must make a forfeiture order if the court finds it is more probable than not that-

(a) for property restrained because of an application relating to property mentioned in section 28(3)(a) or (b) - the prescribed respondent mentioned in that application engaged during the limitation period in a serious crime related activity; or

(b) for property restrained because of an application relating to property mentioned in section 28(3)(c)-the property is serious crime derived property because of a serious crime related activity that happened during the limitation period.

(2) Subsection (1)(b) applies whether or not the person who engaged in the serious crime related activity because of which the property became serious crime derived property has been identified.

(3) However, for property mentioned in subsection (1)(b), the court must also be satisfied the commission or, if the application is made for the State by a police officer, the commissioner of the police service, has taken reasonable steps to identify and notify anyone with an interest in the property.

(4) Also, the court may refuse to make the order if the court is satisfied it is not in the public interest to make the order.

(5) A finding of the court under subsection (1)-

(a) need not be based on a finding about the commission of a particular offence; and

(b) may be based on a finding that some offence that is a serious crime related activity was committed.

(6) Also, the raising of a doubt whether a person engaged in a serious crime related activity is not of itself enough to avoid a finding on which a forfeiture order may be made.

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(9) In this section-

limitation period-

(a) means the period of 6 years before the day the application for the order is made; and

(b) includes periods before and after the commencement of this section.

Note that the law with respect to Forfeiture Orders is set to change later this year.  The changes will extend the power of Police to make applications where the suspected serious crime related activities have occurred outside in any jurisdiction outside Queensland, including overseas.  It will allow the Police to take action in respect of forfeiting property, where:

• (a) a person is suspected of committing serious crime related actives outside Queensland, including in another country; and
• (b) that person lives in Queensland; and
• (c) the property sought to be restrained is situated in Queensland; and
• (d) the Police have made reasonable enquires to ensure that no other action has been taken in respect of that property outside of Queensland.

Keep an eye on this page for updates on when this new legislation comes into effect.

In order for the State to be successful in their application at Court, it must show the following:

That:

(1) It made an application for a Forfeiture Order to the Supreme Court; AND

(2) It gave written notice to:

(a) All persons whose property is restrained under the relevant Restraining Order; AND

(b) All persons who have an interest in the property restrained under the relevant Restraining Order; AND

(3) It is more probable than not:

(a) That the prescribed respondent (i.e. suspected offender), engaged in serious crime related activity that occurred in the 6 year period prior to the day that application for a Restraining Order was made under section 28(3)(a) or section 28(3)(b) (i.e. where a suspected offender has been identified); OR

(b) That the property was derived from serious crime related activity that occurred in the 6 year period prior to the day that application for a Restraining Order was made, where that Restraining Order was made in respect of property under section 28(3)(c) (i.e. where a suspected offender has not been identified).

It is not necessary for the State to prove you committed any offence to obtain the order, but rather that it is more probable than not that you committed serious crime related activity/ies or derived proceeds from serious crime related activity/ies in the past 6 years. 

If the application is successful, the Court will impose a Forfeiture Order against the property restrained under the Restraining Order.  The effect of such an order is that the property will be forfeited to the State absolutely and you will no long have any interest in or right to that property. Accordingly, the Court may make additional orders so as to facilitate the transfer of property to the State.

Note that even if you are later found not guilty of the serious crime related activities, the Forfeiture Order may still remain as the test of proof in respect of such order is looser.

There are certain circumstances where the Court may release the property from the Forfeiture Order.  If the application is yet to be heard, you may apply to have your property excluded from being considered to be forfeited. Click here to find out more.

You may also apply to have property released upon payment of the value of your interest in that property. Click here to find our more.  Further, you may also apply to have property excluded from forfeiture after the Forfeiture Order is made, if there are grounds to do so.  Click here to find out more.

The Court may also exclude property upon application, where it is shown that the applicant has an innocent interest in the property.  Click here to find out more.

Failing having property excluded from forfeiture, you may seek that the Court make an order that part of the proceeds be paid to certain persons or entities. 

In particular, you may seek it make an order that part of the proceeds be applied to the benefit of you dependant/s if you have an interest in property forfeited, where you can show your dependant/s would suffer hardship.  However, where a dependant is over 18 years of age, it must be shown that he or she was unaware of the criminal activities.  

The Court can also order that part be paid to satisfy any encumbrance over the property that was taken out in good faith and for valuable consideration (e.g. to pay the remainder of a mortgage). 

Note that each person whose property is restrained under the Restraining Order and each person who claims an interest in any property restrained may attend the hearing of the application to forfeit that property.  However, the absence of any such interested person, will not preclude the Court from making the Forfeiture Order.

There are no defences to this application, but rather grounds upon which a person can oppose the application. Possible grounds to oppose this application include:

1. The respondent (i.e. you) was not given reasonable notice of the application.

2. Other persons whose property is sought to be forfeited by the order were not provided with reasonable notice.

3. It is more probable than not, that you did not engage serious crime related activity in the previous 6 years.

4. It is more probable than not that the property was derived from legitimate sources.

5. The property was accumulated prior to or after the relevant 6 year period.

6. The order is not in the public interest.

Note that it is not enough to merely raise doubt that you engaged in serious crime related activity/ies or doubt that the money was derived from illegal activity/ies.  The doubt must be enough to make the Judge form the opinion that it is more probable that you did not engage in serious crime related activity or that the property was from legitimate sources.