Key provisions of the Civil Asset Recovery and Management and Unexplained Wealth Act, 2019 came into force on July 28, bringing into operation the legal framework for civil asset recovery, property restriction orders and unexplained wealth proceedings after President Christine Carla Kangaloo issued a proclamation activating several sections of the legislation.
The proclamation brings into force sections 5, 6, 7, 18, 20 to 57, section 70(6), sections 71 to 73, section 76 and Schedule 3 of the Act.
Among the provisions now in operation is section 5, which states that “the standard of proof required to determine any question under this Act as to whether recoverable property should be subject to civil asset recovery shall be on the balance of probabilities.”
Section 6 provides that a Property Restriction Order and a Civil Asset Forfeiture Order are orders in rem, meaning they are directed against property believed to be criminal property, terrorist property or instrumentalities of crime rather than against a person.
Section 7 states that “property which is criminal property, terrorist property or an instrumentality of crime… is recoverable under this Act,” and allows such property to be recovered from the person who obtained it through criminal conduct or, in the case of an instrumentality, from the person who possessed it for use in criminal conduct.
The proclamation also activates Part III of the Act, which establishes the Civil Asset Recovery and Management Fund to finance the operations of the agency responsible for managing seized assets, and requires annual reports and audited accounts to be submitted to Parliament.
In addition, Part IV, comprising sections 30 to 57, comes into force. It empowers the Civil Asset Recovery and Management Agency to apply to the High Court for Property Restriction Orders to freeze suspected criminal assets pending forfeiture proceedings. Section 33 provides that, following a referral from the Director of Public Prosecutions, the agency may seek an order “to prohibit a person from dealing with recoverable property until such time as an application can be made to forfeit the recoverable property.”
Under section 34, the High Court may grant a Property Restriction Order where it is satisfied there are “reasonable grounds to believe” the property is recoverable property or associated property. The court may also direct the agency to seize, preserve and manage the property while proceedings continue.
