Defending Confiscation and Proceeds of Crime Proceedings
Duxton Hill is experienced in handling confiscation matters across both state and federal jurisdictions. Our team provides expert advice to individuals seeking to protect their assets from the following proceedings:
- Freezing orders
- Restraining and forfeiture orders
- Unexplained wealth orders
- Compulsory examinations regarding seized assets
- Post-sentencing compensation orders

What Are Confiscation and Proceeds of Crime Proceedings?
The Proceeds of Crime Act 2002 (Cth) and the Confiscation Act 1997 (Vic), give authorities powers to seize, freeze and forfeit property suspected of being linked to criminal offences. These laws are intended to strip individuals of assets deemed to be the proceeds of, or used in connection with, criminal activities. Proceeds of crime orders may also extend to assets suspected of being acquired through criminal activity where no criminal charges have been laid, or where those assets cannot be explained by lawful income.
Charge-based Restraining Order
It is common for the property of a person who has been charged with a criminal offence to be the subject of a restraining order. The orders are sought to preserve property for potential forfeiture and prohibit any disposal or management of the property unless specified by the order. These orders can apply to specific property, all assets of a person or even a third party’s property.
The relevant authority can apply for such orders in advance of a person being charged, and they are almost always obtained ex parte, meaning that the order will be made without the property owner having any notice of the court proceedings.
Civil Forfeiture Restraining Orders
Typically, property is subject to a restraining order if it was used to commit crimes, purchased with money from an offence, or otherwise connected to the offender.
Civil forfeiture restraining orders can be obtained by authorities on the basis of a police officer having a reasonable suspicion the property is tainted, namely that it is the proceeds of an offence or was used in connection to criminal offending. They do not require that any person be charged with an offence.
Unexplained Wealth Orders
Unexplained wealth orders, similar to civil forfeiture orders, preserve property for potential forfeiture and prohibit any disposal or management of the property unless specified by the order.
While the legislative tests for an unexplained wealth restraining order differ between jurisdictions, an authority may obtain such an order based on reasonable suspicion, supported by an appropriate affidavit, that a person’s wealth is greater than what could be ascertained to be lawfully acquired wealth. For example, a person with significant assets who hasn’t declared any income for tax purposes would potentially attract an unexplained wealth order.
Challenging an Order
Restraining orders on assets are often obtained without prior notice, which can leave individuals facing sudden restrictions on their assets. In some cases, property can be restrained or forfeited without anyone being charged or convicted, including property jointly owned by uninvolved parties like spouses.
Those with a legitimate interest in the restrained property can apply to the court for an exclusion order, but note there are strict timeframes for doing this. The test for exclusion will depend on whether the property was restrained under state or federal law, but essentially a person must demonstrate that the property was lawfully acquired and is not either derived from criminal activity or was used for criminal purposes.
It’s essential to seek independent legal advice if your assets are affected, especially when your interests diverge from the party being accused of criminal activity. Unlike criminal proceedings where the burden of proof lies with the prosecution, confiscation proceedings are civil. This means it’s up to the applicant to prove the lawful acquisition of their property.
If you’ve been notified of a restraining order, our team can assist you with:
- Understanding your legal rights
- Filing exclusion applications
- Challenging the forfeiture of your property

Defending Restitution and Compensation Orders
Compensation and restitution orders are governed by the Sentencing Act 1991 in Victoria. These orders are treated as a judgment debt owed by the offender to the person the order is in favour of. If any amount remains unpaid, it can be enforced in the same court that issued the order.
In Victoria, restitution or compensation to victims takes priority over other claims on restrained property. The State must use the value of any restrained property to satisfy restitution, compensation, or damages orders before applying the property to any other ends.
Restitution order
If goods have been stolen and a person is found guilty or convicted of an offence connected with the theft, the court may order a person who has possession or control of the stolen goods to return them, or goods that are the proceeds of any disposal or realisation of the stolen goods, to the person entitled to them.
Compensation Order
If a court finds a person guilty of an offence, it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation to the victim for pain, suffering, medical expenses, and other losses directly resulting from the offence.
