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STEP-BY-STEP GUIDE FOR ASSET RECOVERY

FROM G20 COUNTRIES
AUSTRALIA

I. INTRODUCTION
Australian authorities can take action to register foreign restraining, forfeiture or pecuniary
penalty orders under the Mutual Assistance in Criminal Matters Act 1987 (Cth) (MACMA),
seek time-limited domestic restraining orders pending receipt of a foreign restraining order,
or, in certain circumstances, consider domestic action under the Proceeds of Crime Act 2002
(Cth) (POCA). Australia can register both conviction-based and non-conviction-based
proceeds of crime (POC) orders directed against both persons and assets received from any
country provided the appropriate legal thresholds are met, including that the order is made in
respect of an offence which carries a maximum penalty of death, imprisonment for a period
exceeding 12 months, or a fine exceeding A$51,000. There are a range of tools under the
MACMA to identify, locate and trace the proceeds of crime located in Australia. Australia
would generally only take POC action on receipt of a formal mutual assistance request
(MAR) but can provide investigative assistance on an agency-to-agency basis and, in limited
circumstances, domestic POC action on behalf of a foreign country might be considered in
the absence of a MAR and foreign POC order. Australian laws can be accessed at:
http://www.comlaw.gov.au/.
II. HOW TO SEEK RESTRAINT, SEIZURE AND FORFEITURE/CONFISCATION
FROM AUSTRALIA
While Australia has various options available to take action against property in Australia that
is reasonably believed to be proceeds of crime, Australias preference is to register a foreign
countrys POC order in an Australian court. The steps in the following guide are based on a
foreign country asking Australia to register a foreign POC order.

Australia encourages foreign countries considering POC action against property located in
Australian to make early contact with Australias International Crime Cooperation Central
Authority (ICCCA). ICCCA is Australias central authority for mutual assistance and can
provide guidance on the most appropriate form of action available under Australias POC
regime to give effect to the foreign countrys request. ICCCA can also provide advice on
what information will be relevant to ensure that the order can be registered, including whether
the order is in a form that can be registered in an Australian court. ICCCA can be contacted
at <mutual.assistance@ag.gov.au>.

1. Foreign country identifies property located in Australia that is capable of being

restrained and forfeited as either the proceeds or instruments of crime.
[NOTE: If necessary, investigative assistance for assets located in Australia
(identification, quantification, etc.) may be provided on either a police-to-police basis
or via formal MAR in advance of any action to obtain or register a foreign POC order.
An MAR is required to exercise coercive action (e.g. obtaining production orders,
search warrants or monitoring orders).]
[NOTE: In certain circumstances (for example, where there is a high risk that assets
may be dissipated before a foreign POC order can be obtained) Australia can obtain a
temporary, 30 day, restraining order. A request for a temporary restraining order must
still be made via MAR and must provide reasonable grounds to believe that property
in Australia may be made or is about to be made the subject of a foreign order].

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2. Foreign country obtains a foreign POC order freezing/seizing/restraining the identified

assets.
3. Foreign country makes an MAR to Australia, attaching the foreign POC order, and
requesting that Australia give effect to the foreign POC order.
4. Australia seeks ministerial authorisation to apply to an Australian court to register the
foreign POC order.
[NOTE: Once a foreign POC order is registered in an Australian court, it has effect as
though it is an Australian order. The provisions of Australias POCA apply to foreign
orders registered in Australia, including dealing with the property.
1. IDENTIFICATION OF THE ASSETS
To recover the proceeds of crime (including proceeds of corruption) located in Australia, first
identify the suspect and all related entities through which he/she may hold, or exercises
effective control over, property including financial institutions, companies, businesses, trusts
and family members. If you are seeking assistance to identify assets in Australia that may be
subject to restraint and forfeiture, the following mechanisms are available:

Mutual assistance request Australia requires a mutual assistance request to exercise

coercive action on behalf of a foreign country including production orders, search
warrants or monitoring orders; providing lawfully obtained telecommunications
interception information and stored communications information and using surveillance
devices on behalf of a foreign country. Detailed information about making a mutual
assistance request to Australia is available in the G20 Country Guide to Mutual Legal
Assistance but in general, the steps outlined below should be followed:
Step 1: Consult with the central authority before submitting the request
Step 2: Indicate the basis on which the request is made
Step 3: Identify the authority conducting the investigation / prosecution
Step 4: Summarise the case
Step 5: Set out the applicable legal provisions
Step 6: Specify the assistance being sought
Step 7: Highlight any specific confidentiality requirements
Step 8: Identify any urgency in the execution of the request
Step 9: Provide a list of relevant contact points in your country
Step 10: Translate the request into English
Police-to-police assistance The Australian Federal Police (AFP) can undertake a range
of specific tasks to identify assets including investigations into property ownership (i.e.
land/vehicles/vessels/aircraft and other valuable chattels), corporate checks, financial
intelligence, revenue enquiries and obtaining criminal records/intelligence which may
support the original request. Police-to-police enquiries focus on open source databases
(corporate checks, some financial checks, land titles registers, etc.) and restricted law
enforcement databases (i.e. financial intelligence and criminal history checks).
2. CONFISCATION OF PROPERTY RELATING TO FOREIGN OFFENCES
Australia can assist foreign countries to recover assets pursuant to a formal MAR or, in
limited circumstances, via domestic POC action.
All mutual assistance requests are considered in accordance with the MACMA and any
relevant bilateral or multilateral treaty. Information about the grounds for refusal of
assistance under the MACMA is set out at section 8 of the MACMA.

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Mutual Assistance Request

Conviction-based action
To restrain assets located in Australia pursuant to a foreign restraining order based on a
foreign conviction:
1. an MAR requesting enforcement of a foreign restraining order must have been
received
2. the relevant property must reasonably be suspected of being located in Australia,
and
3. the foreign restraining order must have been made in respect of a foreign serious
offence for which a person has been convicted or charged. A foreign serious
offence means an offence against the law of a foreign country the maximum
penalty for which is death, imprisonment for a period exceeding 12 months or a
fine exceeding A$51,000.

To confiscate assets located in Australia pursuant to a foreign pecuniary penalty order or a

foreign forfeiture order based on a foreign conviction:
1. Australia requires an MAR from a foreign country requesting enforcement of a
foreign forfeiture order or foreign pecuniary penalty order
2. the foreign order must be made in respect of a foreign serious offence (defined
above)
3. the foreign order must be made against property that is reasonably suspected of
being located in Australia (for a forfeiture order) or some or all of the property
available to satisfy the order must be reasonably suspected of being located in
Australia (for a pecuniary penalty order)
4. the Attorney-General must be satisfied that a person has been convicted of the
relevant offence, and
5. the Attorney-General must be satisfied that the conviction and the POC order are
not subject to further appeal in the foreign country.
Non conviction-based action
To restrain assets located in Australia pursuant to a foreign restraining order based on a
suspicion/belief that a person has committed a foreign serious offence:
1. an MAR requesting enforcement of a foreign restraining order must have been
received
2. the relevant property must reasonably be suspected of being located in Australia,
and
3. the foreign restraining order must have been made in respect of the alleged
commission of a foreign serious offence (whether or not the identity of the person
who committed the offence is known) (see paragraph 34(3)(b) MACMA).
[NOTE: As with conviction-based restraint, in certain circumstances, Australia can
obtain a time-limited (generally 30 days) restraining order where a foreign country
makes a request for POC action but has not yet obtained a foreign restraining order
(section 34J MACMA).
To confiscate assets located in Australia pursuant to a foreign pecuniary penalty order or a
foreign forfeiture order based on a suspicion/belief that a person has committed a foreign
serious offence:

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For foreign forfeiture orders

1. an MAR requesting enforcement of a foreign forfeiture order is made to Australia
2. the foreign forfeiture order has the effect of forfeiting a persons property on the
basis that the property is, or is alleged to be, the proceeds or an instrument of a
foreign serious offence (whether or not a person has been convicted of that
offence), and
3. the foreign forfeiture order is made against property that is reasonably suspected
of being located in Australia (see subsection 34(2) MACMA).

For foreign pecuniary penalty orders

1. an MAR requesting enforcement of a foreign pecuniary penalty order is made to
Australia
2. the pecuniary penalty order has the effect of requiring a person to pay an amount
of money on the basis that the money is, or is alleged to be, the benefit derived
from a foreign serious offence (whether or not the person has been convicted of
that offence)
3. some or all of the property available to satisfy the order is reasonably suspected of
being located in Australia.
Domestic action under the POCA
In limited circumstances, Australia may consider taking domestic action on behalf of a
foreign country under the POCA. This action can take place in the absence of a foreign POC
order and an MAR may not be required. Domestic action can be initiated on both a
conviction and non-conviction based basis.

Under the POCA, subject to satisfying the relevant evidentiary requirements, an authorised
officer can apply for a freezing order over a bank account where the account balance reflects
proceeds or an instrument of a foreign indictable offence. Alternatively, a proceeds of crime
authority can apply to a court for a restraining order in respect of property reasonably
suspected to be the proceeds of a foreign indictable offence. A foreign indictable offence
involves conduct that would, had the conduct occurred in Australia, have constituted an
offence punishable by at least 12 months imprisonment.

If a property is restrained pursuant to domestic POC action under the POCA, then a proceeds
of crime authority may apply to a court for a forfeiture order in respect of the proceeds of a
foreign indictable offence, where the property to be specified in the order is covered by a
restraining order under section 19 that has been in force for at least six months (section 49
POCA). If the application is uncontested (i.e. there has not been an application to exclude
property from the restraining order), the court must make a forfeiture order if satisfied of
certain criteria including that the proceeds of crime authority has taken reasonable steps to
identify and notify persons with an interest in the property and that the property is proceeds of
one or more foreign indictable offences. If the application is contested, the court must also be
satisfied on the balance of probabilities that the property the subject of the order is the
proceeds of a foreign indictable offence. However, the making of the forfeiture order does
not require the court to find that a particular person committed any offence.
3. DISPOSAL/RETURN OF ASSETS
Once assets in Australia are forfeited, they are dealt with under Australian law. However,
Australias POC regime allows for the sharing of assets forfeited in response to a request by a
foreign country.

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Assets forfeited as a result of the registration of a foreign forfeiture order under MACMA
may be dealt with in accordance with any direction of the Attorney-General, subject to the
effect on third parties of the registration of the foreign forfeiture order. The Attorney-General
may authorise the sharing of forfeited assets with a foreign country in this way.
Assets forfeited as a result of the enforcement of a foreign pecuniary penalty order under
MACMA must be paid into the Commonwealth Confiscated Assets Account (CAA). Any
assets/property forfeited as a result of a domestic forfeiture order under POCA are also paid
into the CAA.
The POCA prescribes the uses to which monies paid into the CAA may put, and includes:
making any payments to foreign countries that the Minister considers are appropriate
under the equitable sharing program, and
making any payments that the Minister considers necessary to satisfy Australias
obligations in respect of a registered foreign forfeiture order or registered foreign
pecuniary penalty order.
(The equitable sharing program is an arrangement under which Australia shares with a
foreign country a proportion of any proceeds of any unlawful activity recovered under a
federal law if, in the Ministers opinion, the foreign country has made a significant
contribution to the recovery of those proceeds or to the investigation or prosecution of the
unlawful activity.)
Australia has bilateral mutual legal assistance treaties with 30 countries. Those treaties
generally include provisions relating to sharing of confiscated assets. Additionally, Australia
has ratified a number of international conventions that have proceeds of crime and asset
sharing provisions, including the United Nations Convention Against Corruption (UNCAC).
Any request made of Australia under the UNCAC and relating to stolen State assets will be
considered by Australia in accordance with the obligations of the UNCAC
III. ASSET RECOVERY AGENCY/ AGENCIES CONTACT INFORMATION
Police-to-police assistance can be initiated through the AFP while ICCCA facilitates formal
government to government assistance.
Criminal Assets Confiscation Taskforce International Crime Cooperation Central
Authority Attorney-Generals Department
Australian Federal Police 3-5 National Circuit
GPO Box 401 Barton ACT 2600
Canberra ACT 2601 Australia
Australia <mutual.assistance@ag.gov.au>
<CACT-Canberra@afp.gov.au>

The Australian Federal Police (AFP) works closely with other agencies through the AFP
International Network across 28 AFP International Posts and relies on the strength of police
to-police relationships to make enquiries in relation to asset tracing and potential actions
against criminal proceeds. The AFP is an active member of the Camden Asset Recovery
Inter-Agency Network (CARIN), the Stolen Asset Recovery Global Focal Point (SARGFP
via Interpol), the Strategic Alliance Group (SAG) and the Asia Pacific Group on Money
Laundering. In some instances financial intelligence necessary for tracing assets may be
obtained from foreign financial intelligence units through the Egmont Group of Financial
Intelligence Networks.

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IV. OTHER USEFUL REFERENCES

Requesting countries are encouraged to refer to information relating to ICCCA at:
http://www.ag.gov.au/Internationalrelations/Internationalcrimecooperationarrangements/Mut
ualAssistance/Pages/default.aspx for additional guidance on making asset recovery requests
to Australia.

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