Asset Forfeiture Provisions
The Financial Action Taskforce’s Recommendations on International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation (the FATF Recommendations) include a recommendation that countries adopt measures to enable authorities to freeze, seize or confiscate assets such as the proceeds of money laundering, terrorism and other offences, without prejudicing the rights of bona fide third parties. It is also recommended that this be permitted without requiring a criminal conviction and that offenders be required to demonstrate the lawful origin of their property. The Federal government and most States and Territories (except Tasmania) have proceeds of crime legislation which is being progressively updated for consistency with the FATF Recommendations and to remove the need for a criminal conviction before assets can be frozen, seized or otherwise dealt with by the authorities, by introducing a civil forfeiture regime. This means that if a court is satisfied to the civil standard of proof that property is proceeds of crime then it may be dealt with under the relevant legislation.
Proceeds of crime legislation imposes various risks to Members’ businesses through the forfeiture of assets, the creation of charges on customers’ property in favour of the authorities, orders to produce documents relevant to locating the proceeds of crime .and freezing orders on deposit-taking financial institutions. AELA supports an approach which strikes an appropriate balance between the interests of financiers and law enforcement agencies. In particular, AELA is concerned to ensure that the interests of financiers are both easily identifiable and adequately protected when an asset, which may have been used in connection with the commission of a crime or may have been acquired with the proceeds of crime, is seized and forfeited.