Asset Confiscation in Victoria (Confiscation Act 1997)

Victoria's Confiscation Act 1997 allows authorities to freeze and confiscate property connected with crime, including proceeds of crime and homes or vehicles used in offending — in some cases without any criminal conviction. Once property is frozen by a restraining order, it cannot be sold, transferred or mortgaged. A lawyer can review the order, make an exclusion application within strict time limits, and help innocent family members or co-owners protect their legitimate interests.

Key points

• Confiscation in Victoria is mainly governed by the Confiscation Act 1997 (Vic); for Commonwealth offences the Proceeds of Crime Act 2002 (Cth) may apply instead.
• Restraining orders can be sought before charges, after charges or after conviction, freezing property so it cannot be dealt with before confiscation proceedings finish.
• After conviction for a Schedule 1 offence the prosecution can apply for a forfeiture order and must show the property is tainted; for serious Schedule 2 offences, restrained property may be automatically forfeited on conviction.
• Civil forfeiture targets property connected with suspected Schedule 2 offending, needs no criminal conviction and is decided on the balance of probabilities.
• Courts can also make a pecuniary penalty order, requiring a convicted person to pay the State an amount equal to the benefit they derived from the offending.
• Exclusion applications are subject to strict time limits; missing them can mean losing the chance to protect the property, so get advice as soon as a restraining order is served.

What property can be frozen or confiscated?

The Confiscation Act targets property connected with crime, mainly:

• Proceeds of crime: money or assets derived directly or indirectly from offending, such as a property bought with drug-trafficking profits.
• Instruments of crime: property used or intended to be used in offending, such as a house used to grow cannabis or a car used to transport drugs.
• Other property of the person: for some serious offences the law allows broader assets of the person to be restrained to secure a pecuniary penalty order.

Importantly, property held in a family member's or company's name may still be caught if it is considered to be effectively controlled by the person involved or connected with the offending.

Restraining orders: what happens once property is frozen?

Restraining orders are usually sought by police or prosecutors and are sometimes made without notice to the owner, then served afterwards. Once in force, the property cannot be sold, transferred, mortgaged or otherwise dealt with, and bank accounts may be frozen. For example, after someone is arrested for alleged drug trafficking, the home they own jointly with their spouse and their car may be restrained — the spouse, though not charged, can no longer sell or refinance the home. When an order is served, check the listed property, conditions and service date immediately, because time limits usually run from service or the date of the order.

Exclusion applications: protecting legitimate property

An exclusion application asks the court to remove property from a restraining order or from forfeiture. Common grounds include that the property is not tainted and was acquired with lawful income, that the applicant did not know of or take part in the offending, or (for Schedule 1 forfeiture) that forfeiture would cause undue hardship. Where Schedule 2 automatic forfeiture applies, exclusion applications generally have to be made at the restraint stage, and there may be no second chance after conviction — so acting early is crucial. Applications need solid documentary evidence, such as bank statements, loan documents, tax records and proof of the source of funds. Where money came from overseas, translated and certified foreign documents are often needed.

Civil forfeiture and unexplained wealth

Civil forfeiture does not depend on a criminal conviction: property suspected of being connected with Schedule 2 offending can be restrained and forfeited even if no one is charged. Victorian law also has an unexplained wealth regime under which, in certain circumstances, a person must prove to the court that their wealth was lawfully acquired or may have to pay a corresponding amount to the State. Parliament has passed amendments in recent years to strengthen the unexplained wealth laws, so the exact conditions and thresholds need to be checked case by case.

The Commonwealth Proceeds of Crime Act

Where Commonwealth offences are involved — such as money laundering, importing prohibited goods, or tax or welfare fraud — confiscation may be pursued by Commonwealth authorities under the Proceeds of Crime Act 2002, with different procedures, time limits and courts. Some matters involve both State and Commonwealth agencies, so it is important to identify which regime applies.

How this interacts with the criminal case

Confiscation proceedings and the criminal case affect each other: a guilty plea counts as a conviction and may trigger forfeiture or automatic forfeiture, while material filed in confiscation proceedings must be considered for its effect on the criminal defence. Criminal defence and asset protection should therefore be planned together, and the property consequences understood before deciding whether to plead guilty.

Frequently asked questions

Can property be confiscated without a conviction?

Yes, it can. Victoria's civil forfeiture regime targets property suspected of being connected with serious Schedule 2 offences, without the need for a conviction, on the balance of probabilities.

My spouse and I co-own the house and I did nothing wrong — can it be taken?

A co-owner can make an exclusion application, showing their share was acquired with lawful funds and that they did not know of or take part in the offending. Time limits are strict, so act quickly.

What should I do after receiving a restraining order?

Do not deal with the property, keep the served documents, note the date of service and get legal advice quickly while gathering proof of where the funds came from.

Money sent from overseas has been frozen — how do I prove it is legitimate?

You will usually need overseas bank records, evidence of income or property sales, gift documents and similar, translated and certified as the court requires. We can work with you in Chinese to assemble them.

Will pleading guilty affect my property?

Yes. A guilty plea is a conviction and may trigger a forfeiture order or automatic forfeiture, and affect exclusion time limits. Understand the property consequences before you plead.

If you or a family member are dealing with a restraining order or forfeiture of property, getting advice early usually leaves more options open. Call Chua Tan Associates on 03 9602 3988 to meet us at our Melbourne CBD office (Level 2, 262 Queen Street) or by video. We speak Mandarin, Cantonese and English. This page is general information only and is not legal advice.

Reviewed by Justin Chua, Lawyer, Chua Tan Associates | Last updated: October 2026