CONFISCATION LEGISLATION IN WESTERN AUSTRALIA: A BRIEF OUTLINE
Considering the impact a criminal confiscation can have on an individual and their family, experience has shown that most people charged with an offence that enlivens the provisions of Criminal Property Confiscation Act 2000, have no idea of the ramifications or how the Act works.
Put at its simplest, the State can confiscate any property owned or controlled by a person, when that person has been declared a drug trafficker or the property is crime used or crime derived. In the case of a drug trafficker, it matters not whether the property was lawfully acquired. So, for example, a person could inherit a home worth $5 million, however, if they are declared a drug trafficker, they will lose their lawfully acquired property.
In 2000, the government justified the confiscation of personal and real property on the grounds that it would:
- Deter crime by removing profitability;
- Prevent crime by diminishing ability for offenders to finance crime;
- Redress injustice of those who profit from crime at society’s expense;
- Compensate society for harm, suffering and human misery caused by crime;
- Reimburse State for ever increasing cost of fighting crime; and
- Engender public confidence in administration of justice by demonstrating to the community crime does not pay.
The Act was promoted on the basis that it was aimed at bikies and organized crime. In fact, most people caught by the Act are not bikies or members of an organized crime syndicate.They are typically individuals, many of whom have offended for the first time or are innocent third parties, who have their property frozen because they share ownership with an offender.
Significantly, the Act is not limited to people who commit drug offences. For example, in the case of The State of Western Australia v Rock  WASCA 121, a young man on a disability pension had his house confiscated after being convicted of a number of sexual offences against three girls. His home was confiscated on the basis that it was “crime used,” because the sexual offences had been committed in his house. Justice Steyler, in Rock’s case described this as “the draconian operation of the Criminal Property Confiscation Act.”
Despite its name, the Criminal Property Confiscation Act operates in the civil jurisdiction and is therefore governed by the rules and regulations of civil procedure. Perhaps the most notable aspect of this fact is that costs can be awarded to the successful litigant.
The confiscation process is commenced by the issuing of a Freezing Notice by the police. This will be served on an alleged offender and, in due course, any other parties that have an interest in the frozen property. An interest in property is not strictly limited to a legal interest, the court can recognize equitable interests as well, for example an interest created by a constructive trust.
If a party served with a freezing notice does not file an objection within 28 days, certain property will be automatically confiscated
It is an offence to deal with property once it has been frozen. Dealing is defined in the Act as to:
- sell property or give it away;
- dispose of property in any other way;
- move or use property;
- accept property as gift;
- take any profit, benefit or proceeds from the property;
- create, increase or alter any legal or equitable right; and
- effect a change in effective control of the property.
The court will grant control and management orders for frozen property, which can allow an objector to live in their house or continue to use their car. A failure or inability to look after frozen property can lead to the Public Trustee being appointed to control and manage the property, including giving them the power to change locks and charge and collect rent.
The most common way property is confiscated is after an individual has been convicted of a criminal offence, typically a drug offence, and they have been declared a drug trafficker. The DPP will make a formal application for confiscation. With respect to real property, the DPP will go on title as the owners of the property and inevitably, the property will be sold. It is possible for an interested party to negotiate with the DPP to purchase back the family home or other property they might wish to retain.
In the case of Mansfield v Director of Public Prosecutions (2006), the court stated that the WA Act is “both draconian and complex.” The Act has been criticized, not only because it is harsh, punitive and severe, but also on the grounds that it is poorly drafted and difficult to navigate. The most prudent course for anyone receiving a freezing notice is to immediately seek legal advice from a lawyer who specializes and has expertise in confiscation matters.