Modernising Queensland’s Asset Confiscation Regime: Proposed Reforms to the Criminal Proceeds Confiscation Act 2002

In April 2024, Queensland’s Crime Corruption Commission (CCC) issued a reform agenda attempting to update the Criminal Proceeds Confiscation Act 2002 (CPCA). The CPCA is a crucial tool in Queensland’s arsenal against criminal enterprises, as it enables law enforcement to confiscate assets derived from or used in criminal activity. 

However, owing to the evolving nature of contemporary organised crime, the review titled Modernising Queensland’s Asset Confiscation Regime:  A Reform Agenda for the Criminal Proceeds Confiscation Act 2002 (Qld) made significant recommendations to allow the CPCA to keep up. Illegal operations have become increasingly complex, such as using digital assets and offshore links that prove challenging to trace. In addition, the estimated amount laundered in 2022-2023 was between $10 billion and 25 billion in Queensland alone. 

In this article, we’ll cover these proposed changes and explain what these imply.

Key Areas for Reform

Updating the Money Laundering Offence

One of the CCC’s top priorities is to make Queensland’s money laundering offence more “contemporary, clear, and fit-for-purpose.” The proposed reforms aim to ensure that the money laundering offence can effectively target the complex schemes used to legitimise criminal proceeds.

The reforms aim to capture the sophisticated methods used by organised crime groups by:

• Including “Tainted Property”: Explicitly covering transactions involving property derived from or used in criminal activity, even if there is no criminal conviction.
• Criminalising “Wilful Blindness”: Making it an offence to be wilfully blind to the criminal origins of assets, rather than requiring proof of actual knowledge.
• Ensuring Consistency: Aligning the offence more closely with Commonwealth and other state laws to address gaps and ensure uniformity.

Enhancing Investigative Powers

The changes would also expand the investigative powers available to authorities to better detect and disrupt money laundering activities. This includes:

• Allowing the use of more Commonwealth investigative tools when money laundering offences cross state borders.
• Improving information sharing between state and federal agencies to identify criminal assets more effectively.

Overall, the proposed amendments aim to modernise Queensland’s money laundering laws to better counter the increasingly sophisticated tactics used by organised crime groups to conceal the proceeds of their activities.

Dealing with Digital Assets

The emergence of digital assets, such as cryptocurrencies and non-fungible tokens (NFTs), has posed new challenges for law enforcement in tracing and seizing illicit funds. Law enforcement agencies cannot seize these since digital assets are not defined in the Police Powers and Responsibilities Act 2000 and the Crime and Corruption Act 2001. Hence, the CCC’s review has emphasised the need for law enforcement to improve the management of new ways to store and transfer wealth. The proposed reforms may include provisions for the identification, restraint, and forfeiture of digital assets associated with criminal activity.

Introducing an Asset-Focused Confiscation Mechanism

Currently, the CPCA primarily focuses on confiscating assets after a criminal conviction has been secured. However, the CCC has proposed the introduction of an asset-focused confiscation mechanism that would allow for the restraint and forfeiture of assets without the need for a conviction. This reform would make it more difficult for criminals to accumulate wealth, and would disrupt their ability to fund future criminal enterprises.

Changing How Confiscated Assets Are Used

The CCC has recommended changes to the utilisation of confiscated assets, proposing that a portion of the proceeds be allocated to crime prevention and victim support initiatives. This reform would ensure that the financial impact of asset confiscation benefits the broader community, as the funds would be reinvested in programs aimed at reducing crime and supporting those affected by it, not just punishing criminals.

Ensuring the Act Delivers on Objectives for Disruptive Impact

Finally, the CCC’s review highlights the need for the CPCA to effectively disrupt serious and organised crime. This may include introducing more adaptable and responsive mechanisms for restraining and forfeiting assets, and measures to stop criminals from evading the law through complex legal structures or by moving their assets overseas.

Why the Reforms Are Important

The proposed reforms to the CPCA mark a significant step forward in Queensland’s battle against serious and organised crime. By updating the state’s asset confiscation regime to address the evolving criminal landscape, the CCC aims to strengthen law enforcement’s ability to dismantle criminal enterprises and curb the accumulation of illicit wealth. 

The success of these reforms will depend on their effective implementation and the allocation of adequate resources for enforcement. However, it is crucial the reforms strike a balance between the need for effective crime prevention and the protection of individual rights and due process.

Implications

The proposed changes to the CPCA have significant implications, such as:

1. Increased Risk of Asset Seizure:

• Pre-conviction Restraint: Assets can be restrained and forfeited before a conviction is secured, which means accused individuals may lose access to their financial resources early in the legal process.
• Broader Asset Categories: The inclusion of digital assets, such as cryptocurrencies, means a wider range of assets could be targeted and confiscated.

2. Enhanced Investigative Powers:

• Greater Scrutiny: Law enforcement agencies will have expanded powers to investigate and track assets, leading to a more thorough examination of the financial dealings of those accused.
• Targeting Complex Schemes: The reforms aim to dismantle complex legal structures used to hide assets, making it more difficult for accused individuals to shield their wealth.

3. Legal and Financial Pressure:

• Resource Constraints: Accused individuals may find it more challenging to fund their legal defence if their assets are restrained or seized before conviction.
• Unexplained Wealth Orders: Individuals may be required to justify the legitimacy of their wealth, facing potential asset forfeiture if they cannot provide satisfactory explanations.

4. Shift in Legal Strategy:

• Proactive Defence Needed: Legal teams may need to adopt more proactive strategies to protect assets and navigate the enhanced legal framework.
• Increased Litigation: There may be more legal battles over asset restraint and forfeiture orders, adding complexity and duration to legal proceedings.

5. Deterrent Effect:

• Reduced Incentive for Crime: The threat of losing assets without a conviction may serve as a stronger deterrent against participating in organised crime.
• Impact on Criminal Operations: The financial disruption caused by asset seizures can weaken the operational capacity of criminal enterprises.

6. Balance of Rights:

• Due Process Concerns: Ensuring that asset seizure processes respect individual rights and due process will be crucial. Accused individuals may raise legal challenges on grounds of procedural fairness and rights violations.
• Community Impact: While the reforms aim to benefit the broader community by reinvesting confiscated assets into crime prevention and victim support, accused individuals might argue that the measures are overly punitive.

Conclusion

The proposed reforms to the Criminal Proceeds Confiscation Act 2002 represent a significant step forward in Queensland’s efforts to modernise its asset confiscation regime and disrupt serious and organised crime. Nonetheless, these can also present some challenges, such as those involving individual rights and due process. Hence, for those individuals suspected or accused of accumulating wealth from illicit sources, seeking the advice of experts in Criminal Law is vital.

Hannay Lawyers has a team of experienced Brisbane Criminal Lawyers with a proven track record of representing individuals facing minor or serious offences. Contact us today if you have any questions or concerns about Queensland’s asset confiscation regime, including the proposed reforms.