Proceeds of Crime Act: Tracing and Restraining Assets

What the Proceeds of Crime Act 2002 Does

The Commonwealth Act removes financial gains from crime and preserves property while authorities pursue confiscation. It distinguishes property derived from crime, called proceeds, from property used to commit or facilitate an offence, called an instrument.

The main orders do different jobs:

Order	What it does	Commonwealth provisions
Restraining order	Prevents dealings with specified property while confiscation proceedings continue.	Sections 17, 18 and 19, with separate grounds for each pathway.
Forfeiture order	Transfers specified property to the Commonwealth.	Sections 47 and 49 provide non-conviction pathways. Section 48 concerns convictions for indictable offences.
Pecuniary penalty order	Requires a person to pay an amount based on the benefit derived from offending.	Section 116, with the amount determined under Part 2-4.
Unexplained wealth order	Requires payment of wealth that the person cannot establish was lawfully acquired, subject to the statutory conditions.	Section 179E and Part 2-6.

Sections 315 and 317 make confiscation proceedings civil, with factual questions decided on the balance of probabilities. The authority must still satisfy the requirements of the particular order. A restraint does not establish guilt, and a prosecution ending without a conviction does not necessarily end confiscation proceedings. The Commonwealth Act sets out the separate pathways.

The Australian Federal Police (AFP) leads the Criminal Assets Confiscation Taskforce. Its 2024–25 annual report records $143 million in assets restrained during that financial year. Restraint preserves assets pending further proceedings. It is distinct from final forfeiture.

The separate unexplained wealth guide explains how lawful acquisition becomes the central issue under that pathway.

Restraining Orders

A restraining order prevents disposal or other dealings with the property it covers. Under section 17, the person must be convicted, charged or proposed to be charged with an indictable offence. The affidavit and reasonable-suspicion requirements also apply.

Section 18 concerns people reasonably suspected of committing serious offences. Section 19 concerns property reasonably suspected of being proceeds of specified offences or an instrument of a serious offence. These grounds let an authority seek restraint before a conviction. Under these sections, a separate risk of disposal is not required.

Read the order to identify the restrained property and permitted dealings. A statutory restraining order has its own thresholds. A private litigant’s freezing order follows a separate legal route.

Living Expenses and Legal Funding

Section 24 allows the court to release restrained property for reasonable living expenses, including a dependant’s expenses. It also covers reasonable business expenses and a specified debt incurred in good faith. The person must apply and notify the responsible authority of the grounds.

The applicant must file a sworn statement disclosing all property interests and liabilities. The court must be satisfied that other available property cannot meet the expense. A household budget and supporting records help explain the amount requested.

Section 24(2)(ca) excludes legal costs for proceedings under the Act or criminal proceedings. A lawyer cannot treat the living-expenses provision as authority to pay their fees from the restrained account.

Part 4-2 provides a separate legal-assistance mechanism through legal aid commissions. Section 293 provides for payment of qualifying representation costs from the Confiscated Assets Account. Restrained property can fund those payments if that account is insufficient, subject to the section’s conditions. The section also addresses repayment liability.

Obtaining the Financial Records

Chapter 3 gives authorities powers to identify assets and follow transactions. These powers have separate conditions, and some can operate before restraint:

• Part 3-1 allows examination orders. Section 180 concerns examinations while a restraining order is in force, including questions about a person’s financial affairs.
• Part 3-2 allows production orders for property-tracking documents under section 202. The section limits which documents can be required and distinguishes inspection from production of a financial institution’s ordinary accounting records.
• Part 3-3 allows specified officers to issue notices to financial institutions under section 213. Notices can identify accounts, balances and related accounts. Transaction details can cover a specified period of up to six months.

These records can connect an initial deposit with later transfers and an asset purchase. An examination can address who controlled an account or the claimed purpose of a payment. The transaction records supply the amounts and sequence against which that explanation is assessed.

Forfeiture and Pecuniary Penalty Orders

Forfeiture takes specified property, while a pecuniary penalty creates a liability to pay the Commonwealth. The difference determines whether the tracing task concerns a particular asset or the value of benefits received.

Sections 47 and 49 concern property restrained under sections 18 and 19 respectively. The first requires conduct constituting serious offences. The second addresses the statutory proceeds or instrument grounds. Both generally require the restraining order to have operated for at least six months. The Act permits an earlier consent order.

Section 49 also has a rule for cases without an exclusion application, or where one has been withdrawn. A third-party claimant must address the applicable exclusion procedure before treating the forfeiture hearing as their first opportunity to protect an interest.

Section 116 permits a pecuniary penalty where a person has a qualifying conviction and derived benefits, or where the court finds commission of a serious offence. A conviction is therefore not required for every pecuniary penalty pathway.

Sections 121 to 126 govern benefit calculation. The court considers property received or controlled because of the activity, along with other benefits. Changes in wealth and the person’s income and expenditure also matter. The serious-offence rules can extend to other unlawful activity within the statutory periods.

Expenses of committing the unlawful activity are not deducted under section 126. A benefit calculation is therefore different from a business profit calculation. Separate provisions address reductions for forfeiture and other specified amounts.

A consolidated ledger must distinguish new receipts from transfers of the same money between accounts. Counting an internal transfer as a second receipt would inflate the transaction total. That accounting distinction supports the evidence used for the statutory calculation.

State Proceeds of Crime Schemes

State confiscation Acts have their own grounds and exclusion rules. The Commonwealth Act does not supply a single procedure for every Australian confiscation matter.

State	Main legislation	Difference to identify before tracing
NSW	Confiscation of Proceeds of Crime Act 1989 and Criminal Assets Recovery Act 1990	NSW has distinct conviction-based and civil recovery schemes. The NSW Crime Commission administers recovery under the 1990 Act.
Victoria	Confiscation Act 1997	The Act includes conviction-related confiscation and a separate civil forfeiture regime. Its schedules and exclusion provisions determine the relevant property test.
Queensland	Criminal Proceeds Confiscation Act 2002	Section 4 distinguishes non-conviction confiscation, serious drug offender confiscation and conviction-based confiscation. Section 8 treats the relevant proceedings as civil.
Western Australia	Criminal Property Confiscation Act 2000	The Act includes different confiscation grounds, including drug-trafficker and unexplained-wealth pathways. Lawful acquisition does not defeat every ground.

The NSW Crime Commission describes its forensic tracing and recovery work under the 1990 Act. The Victorian Act and Queensland Act set out their separate schemes.

In WA, the Criminal Property Confiscation Act can reach lawfully acquired assets through its drug-trafficker provisions. WA Police explains this distinction. A lawful source of funds remains relevant evidence, but the legal ground determines what that evidence achieves.

Tracing Assets for Confiscation or Exclusion

Asset tracing connects the source of money with each movement and the property acquired. The same ledger can support an authority’s case or test it for a defence lawyer or third-party claimant.

Start with the supplied accounts across the relevant period. Preserve the account holder and transaction description beside each amount, with the source statement and page. Match transfers between accounts before calculating receipts. Track cash deposits separately from identified salary, loans or sale proceeds, then connect purchase payments with settlement records.

In a hypothetical example, a parent transfers $80,000 from a term deposit to a joint account. The joint account later pays that amount towards a property purchase. The claimant’s evidence connects the term deposit’s funding with the transfer and the settlement payment. Title documents and the legal basis of the contribution establish the interest claimed.

A different trace could show cash deposits moving through several accounts before the purchase. The deposits’ timing and destination help test the claimed source. Money laundering red flags explain transaction patterns that warrant investigation, while asset tracing explains the wider method.

Supporting an Exclusion Application

A third party seeks exclusion of their specified interest through the applicable statutory procedure. Under the Commonwealth Act, sections 29 to 31 address exclusion from restraint. Section 73 addresses exclusion from a forfeiture order or application. Each pathway has its own conditions.

Lawful funding can show that the claimed interest is not proceeds of unlawful activity. Evidence must also address any applicable instrument-of-offence ground. For section 17 or 18 restraint, section 29(4) adds conditions concerning possible pecuniary penalty or literary proceeds orders. A lawful payment alone does not establish every exclusion requirement.

Identify the nature and extent of the interest, then connect it to the funding records. A purchase contract or loan agreement explains the legal transaction. Statements show where the contribution came from and where it went. Apply the relevant notice and time-limit provisions while preparing that evidence.

FinTrace saves lawyers and forensic accountants hours of statement conversion and review. The service consolidates large PDF bundles into a searchable Excel ledger and a readable findings report. It follows transfers across supplied accounts and flags suspicious transactions, with each finding tied to its source PDF filename and page. Professionals have the supporting statement evidence beside the analysis.

For a confiscation or exclusion matter, identify the order and the interest in dispute before commissioning the statement analysis. Request a matter assessment with the approximate page count, accounts and timeframe. FinTrace quotes per matter, so the tracing work can focus on the transactions your application must explain.