News · Criminal law
Criminal asset confiscation: restraining orders, tainted property and unexplained wealth.
Police wires this week again carry tainted property and proceeds charges, alongside the drug, fraud and firearms matters that sit behind them. Those charges are only half the picture. The other half is the confiscation regime, the set of laws that lets the State and the Commonwealth freeze and then take property connected to crime. It can reach a house, a car, a bank account or a business, and in some cases it works without a conviction at all. This is how it operates in the ACT, NSW and at the federal level, and where a person can fight back.
By Aaron Kernaghan · Published 20 August 2026
Two different laws with one name.
People use the phrase "proceeds of crime" for two separate things, and it helps to keep them apart. The first is an offence: dealing with money or property that is the proceeds of crime. That is a charge a person can be convicted of, and we set it out in our notes on money laundering under Division 400 of the Criminal Code (Cth) and on possessing the proceeds of crime in NSW.
The second is what this article is about. It is not a charge. It is a civil process that runs alongside a criminal case, or sometimes on its own, to strip the profits and tools of crime. The State or the Commonwealth asks a court to freeze property and then to take it. A person can be acquitted of the underlying offence and still lose property, because the confiscation process uses a lower standard of proof and does not always need a conviction.
Three sets of laws do the work. The Proceeds of Crime Act 2002 (Cth) covers Commonwealth offences. In NSW the main statutes are the Criminal Assets Recovery Act 1990 (NSW), run by the Crime Commission, and the older Confiscation of Proceeds of Crime Act 1989 (NSW), used by the Director of Public Prosecutions after a conviction. In the ACT the Confiscation of Criminal Assets Act 2003 (ACT) sets the scheme. The mechanics differ, but the shape is the same: freeze, then forfeit.
Can police take your house under proceeds of crime laws?
Property can be taken, but not by police acting alone. It takes a court order, and it runs in two stages. The first stage is a restraining order that freezes the property. The second stage is a forfeiture order or a penalty order that takes it. A house is not immune. If a home was bought with the profits of crime, or was used to commit or conceal an offence, it can be restrained and later forfeited like any other asset.
The owner of the property does not always have to be the person charged. Property held in the name of a partner, a relative or a company can still be caught if the court is satisfied it is proceeds or an instrument of crime, or that the person under investigation controls it. That is why these cases so often turn on tracing, on who really paid for what, and on whether a paper owner is the real owner.
What is tainted property?
Tainted property is the label for property connected to a serious offence. It covers two things. The first is property used in or in connection with committing the offence, such as a car used to move drugs or a phone used to run a supply. That is often called an instrument of the offence. The second is property obtained as a result of the offence, such as cash from a drug supply, the sale money for stolen goods, or an asset bought with those profits. In the ACT the definition sits in section 10 of the Confiscation of Criminal Assets Act 2003 (ACT).
Once a court is satisfied on the balance of probabilities that property is tainted, it can order forfeiture. The civil standard is the point to hold on to. The prosecution does not have to prove the taint beyond reasonable doubt. It has to show it is more likely than not, which is a far easier task, and one reason confiscation reaches further than the criminal charge that sits beside it.
What is a restraining order under the Proceeds of Crime Act?
A restraining order freezes property. It directs that the property must not be sold, transferred, spent, mortgaged or otherwise dealt with, except in the way the order allows. A caveat can go on a title. A bank account can be frozen. Under the Proceeds of Crime Act 2002 (Cth) these orders are often sought without notice to the owner, which means the first a person hears of it is when the freeze is already in place.
Restraint is not the same as forfeiture. The order holds the property still while the court works out what should happen to it. That pause can last months, and it bites hard, because a person can be shut out of their own accounts and home while never having been convicted of anything. The High Court has tested how far these powers can go. In International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319, the Court struck down a version of the NSW restraining power that denied a real chance to be heard. You can read the decision on JADE. The law was amended in response, and restraining orders remain a routine part of these cases.
Can property be forfeited without a conviction?
Yes, and this is the feature that surprises people most. There are two routes to forfeiture. Conviction based forfeiture follows a finding of guilt and takes property tied to the offence proved. Non-conviction based forfeiture does not need a conviction at all. It runs on the balance of probabilities, and it can proceed even where the criminal charge has failed, been dropped, or never been laid.
Under the Proceeds of Crime Act 2002 (Cth), a restraining order usually has to be in force for at least six months before a non-conviction forfeiture order can be made, which gives the owner a window to apply to exclude their property. In NSW the Criminal Assets Recovery Act 1990 lets the Crime Commission obtain assets forfeiture orders and proceeds assessment orders on the civil standard, without any conviction, where the court is satisfied there is reasonable cause to suspect serious crime related activity. The link to a person's actual guilt can be loose, which is exactly why these applications need to be met with evidence, not silence.
What is an unexplained wealth order?
An unexplained wealth order goes further again. It does not ask the court to link property to a particular offence. It asks the court to compare a person's total wealth against the wealth they can prove was lawfully acquired. If the total is greater, the difference is unexplained wealth, and the court can order the person to pay that amount to the State or the Commonwealth.
The burden is reversed. The person has to prove their wealth came from lawful sources. Anything they cannot account for is presumed not to be lawful. These orders were built to target organised crime by removing the profit, without the State having to prove each underlying offence. For the person on the receiving end, the practical task is documentary: bank records, tax returns, contracts and receipts that show where the money came from. A person who cannot produce that trail can lose the value of the gap.
Pecuniary penalty orders.
Sitting alongside forfeiture is the pecuniary penalty order. Rather than taking a specific asset, it fixes a money figure equal to the benefit a person derived from crime, and orders them to pay it. The court assesses the value of what the person gained, then makes them account for it in cash. It is used where the actual property has been spent, moved or hidden, so there is nothing left to forfeit but a benefit that can still be measured. A person can face restraint, forfeiture and a penalty order in the one proceeding, which is why the total exposure in these cases can dwarf any fine attached to the criminal charge.
How do you get restrained property back?
There are answers, but they run on tight timetables. A person can apply to exclude property from a restraining order, or to set the order aside, by showing the property was lawfully acquired and is not the proceeds or an instrument of any offence. Third parties count too. A co-owner, a spouse, a business partner or a lender with a genuine interest can apply to protect their share. In some cases the court will release funds from restrained property to meet reasonable living and legal costs, though the rules on that are strict and vary between the schemes.
The work in these cases is evidence. Because the standard is the balance of probabilities and the burden often sits on the property holder, the person who wins is usually the one who can document a lawful source for every asset in issue. That takes preparation: financial records, a clear account of purchases, and a response to the tracing the State has done. Silence loses these cases. The other trap is time. Deadlines to apply for exclusion or to answer a forfeiture application are short, and missing one can end the fight before it starts.
What this means if your property is frozen.
A confiscation case is a separate front from the criminal charge, and it needs to be run as one. The criminal matter turns on proof beyond reasonable doubt. The confiscation matter turns on the balance of probabilities, on tracing, and on who can prove what about the source of an asset. The two can pull in different directions, and a step taken to help one can hurt the other. That is a reason to have the same lawyer looking at both.
If your property has been restrained, or you have been served with a proceeds application, do not wait for the criminal case to finish. The confiscation clock runs on its own. Get advice on the freeze, the exclusion application and the deadlines straight away. To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.
Frequently asked.
Can police take your house under proceeds of crime laws in Australia?
Yes, in some cases. A court can make a restraining order over a house, a car, a bank account or any other property suspected to be the proceeds of an offence or used in an offence. While the order is in force the property cannot be sold, mortgaged or dealt with. If the court later makes a forfeiture order, the property passes to the State or the Commonwealth. The owner does not always have to be the person charged, and in some cases no conviction is required.
What is tainted property?
Tainted property is property used in or in connection with a serious offence, or property obtained as a result of a serious offence. A car used to move drugs, cash taken in a robbery, and a house bought with the profits of crime can all be tainted property. In the ACT the term is defined in section 10 of the Confiscation of Criminal Assets Act 2003. If a court is satisfied on the balance of probabilities that property is tainted, it can order that the property be forfeited.
Can property be forfeited without a conviction?
Yes. The confiscation regimes include non-conviction based forfeiture, which runs on the civil standard of the balance of probabilities rather than proof beyond reasonable doubt. Under the Proceeds of Crime Act 2002 (Cth), a restraining order must usually be in force for at least six months before a non-conviction forfeiture order is made. The NSW Criminal Assets Recovery Act 1990 allows assets forfeiture and proceeds assessment orders without any conviction, on the civil standard.
What is a restraining order under the Proceeds of Crime Act?
A restraining order freezes property. It directs that the property must not be sold, transferred, spent or otherwise dealt with, except as the order allows. These orders are often sought without notice to the owner, so the first the person knows of it is when the order is already made. Restraint is not forfeiture. It holds the property in place while the court decides whether a forfeiture order or a penalty order should follow.
What is an unexplained wealth order?
An unexplained wealth order requires a person to pay the State or the Commonwealth the value of wealth they cannot show was lawfully acquired. The court compares the person's total wealth against the wealth they can prove was lawful, and the difference can be taken. The burden sits on the person to prove their wealth was lawful, which reverses the ordinary position. The order does not depend on proving a specific offence.
How do you get restrained property back?
A person can apply to exclude property from a restraining order, or to have the order set aside, by showing the property was lawfully acquired and is not the proceeds or an instrument of any offence. Third parties with a genuine interest, such as a co-owner or a lender, can also apply. Living and legal expenses can sometimes be met from restrained property with the court's leave. Strict time limits apply, so early advice matters.
Primary sources: the Commonwealth scheme is the Proceeds of Crime Act 2002 (Cth). In NSW, see the Criminal Assets Recovery Act 1990 (NSW) and the Confiscation of Proceeds of Crime Act 1989 (NSW). In the ACT, see the Confiscation of Criminal Assets Act 2003 (ACT), with tainted property defined in section 10. On the limits of these powers, see International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 on JADE.
To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.
This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 20 August 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.
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