EXPLANATORY STATEMENT
 

Issued by authority of the Minister for Home Affairs

under the Proceeds of Crime Act 2002

Proceeds of Crime Amendment (2026 Measures No. 1) Regulations 2026

Legislative Authority

The Proceeds of Crime Act 2002 (POCA) provides a scheme to trace, restrain and confiscate the proceeds and benefits gained from Commonwealth indictable offences, foreign indictable offences, and certain offences against state and territory law. The POCA also allows confiscated funds to be given back to the Australian community to prevent and reduce harmful effects of crime in Australia.

Section 328 of the POCA provides that the Governor-General may make regulations prescribing matters required or permitted by the POCA to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the POCA.

Section 338 of the POCA provides that matters relating to the definition of certain key terms may be dealt with in the regulations, including but not limited to, the definitions of: ‘serious offence’, 'interstate forfeiture order’, interstate restraining order’, and ‘unexplained wealth legislation’.

Purpose

The Proceeds of Crime Amendment (2026 Measures No. 1) Regulations 2026 (the Amendment Regulations) amend the Proceeds of Crime Regulations 2019 (the Regulations) to expand these definitions to ensure the POCA regime remains fit for purpose, and can properly respond to current and emerging criminal activity, particularly by serious and organised crime.

Background

The definition of a serious offence under section 338 of the POCA includes any indictable offence punishable by imprisonment for 3 or more years, where other conditions under section 338 are met (for example, unlawful conduct relating to narcotics or money laundering). These conditions ensure the POCA remains targeted at offences that are serial in nature - that is, where the proceeds of one offence are commonly used to commit the next. The definition in section 338 also permits additional offences to be listed in the Regulations where they are indictable offences, but do not automatically meet the accompanying conditions.

The Amendment Regulations prescribe additional serious offences, reflecting the gravity of the criminal conduct that is the subject of these offences, and the need for law enforcement to have access to the full suite of POCA powers to confiscate the proceeds, benefits and instruments of this offending.

The Amendment Regulations also ensure state and territory legislation and orders are reflected appropriately to ensure the POCA is up-to-date.

Impact and effect

The Amendment Regulations amend the Regulations to list the Serious and Organised Crime (Unexplained Wealth) Act 2009 (South Australia) as ‘unexplained wealth legislation’ of a state or territory for the purposes of the POCA. This would provide South Australian authorities access to certain information gathering powers in the POCA, including production orders and notices to financial institutions. These allow authorities to access documents relevant to identifying, locating or quantifying property to determine unexplained wealth. Other similar state and territory regimes are already listed, where the relevant jurisdiction participates in the National Cooperative Scheme on Unexplained Wealth.

The Amendment Regulations will list new Victorian restraining and forfeiture orders within the definitions of 'interstate restraining order' and 'interstate forfeiture order' (IRO/IFO). This will mean Victorian authorities can restrain and confiscate unexplained wealth moved across state borders to avoid that state's law enforcement authorities. The amendments would also allow for consistency across other Commonwealth legislative schemes, for example by ensuring court orders in property settlement proceedings under the Family Law Act 1975 do not interfere with proceeds of crime orders. The Regulations already list similar IRO/IFOs from Victoria, along with other jurisdictions.

The Amendment Regulations will prescribe an additional six indictable offences as 'serious offences' under the Regulations. These relate to illicit tobacco, sanctions evasion, and corruption. This will empower a Commonwealth proceeds of crime authority to apply to restrain and confiscate the proceeds of crimes without first having to secure a conviction. The current proceeds of crime authorities are the Commissioner of the Australian Federal Police and the Commonwealth Director of Public Prosecutions.

The following offences will be prescribed as a serious offence for the purposes of the POCA:

• Section 308-15 of the Taxation Administration Act 1953 - possession of 100 kilograms or above of tobacco, where there is a reasonable suspicion that payable excise or customs duties have not been paid.
• Section 70.5A of the Criminal Code - failure to prevent bribery of a foreign public official.
• Subsections 16(1) and (2) of the Autonomous Sanctions Act 2011 - an individual's contravention of an autonomous sanctions law or condition of an authorisation under sanction law.
• Subsection 20(1) - where an individual deals with a freezable asset, and subsection 21(1) - where an individual gives an asset to a proscribed person or entity, and subsections 27(1) and (2) of the Charter of the United Nations Act 1945, where an individual contravenes a United Nations sanction enforcement law.

Consultation

The Amendment Regulations regarding prescription of additional ‘serious offences’ under section 338 of the POCA were informed by consultation with the Australian Border Force, the Department of the Treasury, the Australian Federal Police, and the Department of Foreign Affairs and Trade. These agencies support the amendments.

The Victorian Department of Justice and Community Safety was consulted on the prescription of Victorian restraining and forfeiture orders for the purposes of the definitions of an ‘interstate restraining order’ and ‘interstate forfeiture order’ under section 338 of the POCA. The Department of Justice and Community Safety supported the changes to the definition.

The South Australian Attorney-General’s Department was consulted on the prescription of the South Australian unexplained wealth regime for the purposes of the definition of ‘unexplained wealth legislation’ under section 338 of the POCA. The South Australian Attorney-General’s Department supported these changes.

Detail and operation

The Amendment Regulations are a legislative instrument for the purposes of the Legislation Act 2003.

The Amendment Regulations commence on the day after this instrument is registered.

Details of the Amendment Regulations are set out in Attachment A.

A Statement of Compatibility with Human Rights has been prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011 and is set out in Attachment B.

The POCA does not specify any conditions that need to be satisfied before the power to make the Amendment Regulations may be exercised.

Attachment A

Details of the Proceeds of Crime Amendment (2026 Measures No. 1) Regulations 2026

Section 1 – Name

Section 1 provides that the title of the instrument is the Proceeds of Crime Amendment (2026 Measures No. 1) Regulations 2026 (Amendment Regulations).

Section 2 – Commencement

The instrument commences on the day after the instrument is registered.

Section 3 – Authority

The instrument is made under the Proceeds of Crime Act 2002 (POCA).

Section 4 – Schedules

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

The instrument that is amended is the Proceeds of Crime Regulations 2019 (principal Regulations).

SCHEDULE 1 – Amendments

Item 1 - After subsection 20(1)

Item 1 inserts a subsection (1AA) into section 20 of the principal Regulations which provides that the Serious and Organised Crime (Unexplained Wealth) Act 2009 (South Australia) is ‘unexplained wealth legislation’ for the purposes of section 338 of the POCA.

One of the functions of the Amendment Regulations is to amend the principal Regulations to ensure that the POCA appropriately recognises South Australia’s unexplained wealth regime, as a signatory to the National Cooperative Scheme on Unexplained Wealth (the Scheme). South Australia has been a member of the Scheme since 2021.

Operationally, this amendment allows for South Australian authorities to apply for production orders and issue notices to financial institutions to obtain documents and information of relevance to investigations and proceedings under that states unexplained wealth legislation (see Schedule 1 of the POCA). The amendment would also allow South Australian authorities to use, communicate and record lawfully intercepted information in relation to investigations and proceedings under the South Australia’s 'unexplained wealth legislation' (see subsection 5(1), paragraphs 5B(1)(be)(bf), 6L(1)(ba)(bb), subsection 6L(3) and subparagraphs 68(c)(ia) and (d)(iaa) of the Telecommunications (Interception and Access) Act 1979).

Item 2 - Clause 1 of Schedule 1 (table 2, table item 7, column headed “Order”)

Item 2 inserts section 40ZAB of the Confiscation Act 1997 (Victoria) into item 7 of Table 2 of Schedule 1 of the principal Regulations. Section 40ZAB is a new forfeiture order relating to unexplained wealth orders which was introduced by Confiscation Amendment (Unexplained Wealth) Act 2024. Inserting 40ZAB in the Regulations will ensure these orders are recognised as relevant interstate forfeiture orders.

Item 3 - Clause 1 of Schedule 3 (table 2, table item 3, column headed “Corresponding law”)

Item 3 inserts section 40IA of the Confiscation Act 1997 (Victoria) into item 3 of Table 2 of Schedule 3 of the principal Regulations. Section 401A is a new restraining order introduced by the Confiscation Amendment (Unexplained Wealth) Act 2024. Inserting section 401A into the Regulations will recognise a new Victorian restraining order as a relevant interstate restraining order.  

Operationally, prescription under Part 4-5 of the POCA ensures that orders made under the new unexplained wealth restraining and forfeiture orders can be registered in the superior courts of external Australian territories and enforced in those jurisdictions.

Prescription will also ensure consistency across other Commonwealth legislative schemes–for example, by ensuring a court can make an order under section 154(6)(b)(ii)(A) of the Bankruptcy Act 1966 directing the trustee not to pay or transfer property, or a specified part of property, to a former bankrupt if the property is needed or likely to be needed to satisfy a section 40ZAB forfeiture order. Prescription will also extend safeguards that ensure court orders in property settlement proceedings do not interfere with proceeds of crime orders in relation to the new orders under sections 79A-79C of the Family Law Act 1975.

Prescription will also ensure that a court making certain orders under the POCA will be able to consider all relevant Victorian restraining and forfeiture orders a person may be subject to, if required by the POCA. For example, when considering an application under section 24(1) to make allowances for expenses from property covered by a restraining order, the court may only make an order if it is satisfied that the applicant cannot meet the expense or debt out of property that is not covered by a restraining order, an interstate restraining order or a foreign restraining order registered under the Mutual Assistance in Criminal Matters Act 1987. 

Item 4 – After clause 1 of Schedule 4

Item 4 inserts Tables 1A and 1B into Schedule 4 of the principal Regulations for offences against the Autonomous Sanctions Act 2011 and the Charter of the United Nations Act 1945.

The effect of this Item will be to include additional indictable offences relating to international sanctions evasion that do not otherwise meet the threshold of a ‘serious offence’. The listing of these additional offences addresses pressing issues for law enforcement given the geopolitical environment, and the gravity of the nature of these offences and the potential enrichment that may be derived from a breach means they are appropriate to list as serious offences.

The relevant offences under the Autonomous Sanctions Act 2011 are subsections 16(1) and (2), which make it an offence to contravene a sanction law (subsection 16(1)), or contravenes an authorisation made under a sanctions law (subsection 16(2)). An authorisation means a licence, permit, or other instrument, however described. A sanctions law is defined at section 6 as meaning a law that is prescribed as such by instrument made by the relevant Minister.

The relevant offences under the Charter of the United Nations Act 1945 are:

• Subsection 20(1) dealing with freezable assets
• Subsection 21(1) on giving an asset to a proscribed person or entity
• Subsections 27(1) and (2) on contravening a United Nations sanction enforcement law.

Subsection 20(1) makes it an offence to use or deal with a freezable asset, or to allow or facilitate the asset to be used or dealt with where the use or dealing is not in accordance with a notice.

‘Freezable asset’ as per section 14 of the Charter of United Nations Act 1945 means an asset that is owned or controlled by a proscribed person or entity, or is a listed asset, or is an asset that is generated from either of these categories of assets. A listed asset under section 15 means an asset prescribed by the Minister.

Subsection 21(1) makes it an offence for an individual to make an asset available to a person or entity where they are a proscribed person or entity. Section 18 of the Charter of United Nations Act 1945 allows the Governor-General to proscribe persons or entities where person the proscription would give effect to a that the Security Council has made under Chapter VII of the Charter of the United Nations, that Article 25 of the Charter requires Australia to carry out, and that relates to terrorism and dealings with assets.

Subsections 27(1) and (2) make it an offence for an individual to engage in conduct that contravenes a United Nations sanction enforcement law, or the condition of a licence, permission, consent, authorisation or approval (however described) under a United Nations sanction enforcement law.

Item 5 – Clause 3 of Schedule 4 (before table item 1)

Item 5 prescribes section 70.5A of the Criminal Code – failure to prevent bribery of a foreign public official.

This offence does not meet the three-year imprisonment threshold for a ‘serious offence’ because it is directed at corporations, so a term of imprisonment is not specified. Foreign bribery cases are highly complex matters involving foreign jurisdictions, which means successful criminal prosecutions are difficult to pursue to conviction.  Advice from law enforcement is that making possible non-conviction-based confiscation by listing this offence will enable any financial benefit a corporation obtains from its offending conduct to still be confiscated, in the absence of a conviction. This furthers also enhances the deterrent effect of the offence in section 70.5A.

Item 6 – At the end of Schedule 4

Item 6 inserts a table that specifies offences against the Taxation Administration Act 1953 for the purposes of the definition of a serious offence under the POCA. The relevant offence listed is subsection 308-15(1) in Schedule 1, which states that the possession of tobacco of 100 kilograms or above, is an offence where it is reasonable to suspect that excise or customs duty has not been paid on the tobacco without a relevant exemption.

While this offence is only punishable by a maximum of 2 years’ imprisonment, illicit tobacco profits are in turn being used to fund other serious criminal activity and leading to violence, including murders, in communities. Specifying this offence in the Regulations will assist broader portfolio efforts to combat the illicit tobacco trade and improve the Australian Federal Police’s effectiveness in targeting the profits of serious and organised crime.

Attachment B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Proceeds of Crime Amendment Regulations 2026

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Disallowable Legislative Instrument

The Proceeds of Crime Amendment (2026 Measures No. 1) Regulations 2026 (the Amending Regulations) amend the Proceeds of Crime Regulations 2019 (the Regulations) to ensure that the Regulations remain relevant and fit for purpose.

The Amending Regulations are made under the Proceeds of Crime Act 2002 (POCA). The POCA provides a scheme to trace, restrain and confiscate the proceeds and benefits gained from Commonwealth indictable offences, and the instruments used in the commission of these offences, foreign indictable offences and certain offences against state and territory law.

Section 328 of the POCA provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.

Item 1 of Schedule 1 of the Amending Regulations makes an amendment to the definition of ‘unexplained wealth legislation’ defined in section 20 of the Regulations. This Part prescribes South Australia’s Serious and Organised Crime (Unexplained Wealth) Act 2009 for the purposes of the definition.

Item 2 of Schedule 1 of the Amending Regulations makes an amendment to the definition of an ‘interstate forfeiture order’ defined in Schedule 1 of the Regulations. This prescribes an additional Victorian forfeiture order for the purposes of the definition.

Item 3 of Schedule 1 of the amending Regulations makes an amendment to the definition of an ‘interstate restraining order’ defined in Schedule 3 of the Regulations. This part prescribes an additional Victorian restraining order for the purposes of the definition.

Items 4 and 6 of Schedule 1 of the Amending Regulations makes amendments to the definition of a ‘serious offence’ as prescribed in Schedule 4 of Regulations. This prescribes indictable offences as ‘serious offences’ from the Criminal Code, the Taxation Administration Act 1953, the Autonomous Sanctions Act 2011, and the Charter of the United Nations Act 1945.

Human rights implications

The Amending Regulations engage Australia’s international obligations under the International Covenant on Civil and Political Rights (ICCPR). The engaged rights are:

• the right to a fair hearing in Article 14(1) of the ICCPR,
• the right to freedom from arbitrary and unlawful interference with privacy, family, home and correspondence in Article 17 of the ICCPR. And
• equality before the law in Article 26 of the ICCPR

Right to a fair hearing

Article 14(1) of the ICCPR relevantly provides that:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

Article 14(1) provides for the right to 'a fair and public hearing by a competent, independent and impartial tribunal established by law', both in the cases of a criminal charge and in civil proceedings. The Amending Regulations promote the right to a fair hearing, as it contains mechanisms to promote equality before courts in civil proceedings. Proceedings under the POCA are heard by Commonwealth, state and territory courts in accordance with the relevant procedures of those courts. This affords affected persons adequate opportunity to present their case should proceeding involve relevant Victorian or South Australian powers enabled by the Amending Regulations. Affected persons also have the opportunity to appeal decisions in accordance with the relevant jurisdiction’s procedures.

Right to privacy

Article 17 of the ICCPR provides:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks

The Amending Regulations may engage the right to privacy to the extent that they support the operation of the POCA in relation to production orders and notices to financial institutions.

Under the POCA, relevant authorities can compel persons to provide documents and/or information using production orders or notices to financial institutions for purposes connected with their unexplained wealth legislation. This enables jurisdictions participating in the National Cooperative Scheme on Unexplained Wealth (NCSUW) to access documents relevant to identifying, locating or quantifying the property of a person for the purpose of determining whether to act in relation to that person under the unexplained wealth legislation of a participating jurisdiction.

This may engage the right to privacy to the extent that the application of these provisions are activated by prescription under section 20 of the Regulations. However, this application is reasonable, necessary and proportionate to achieve the legitimate objectives of preserving public order and protecting the rights and freedoms of others. This is because these powers assist in combating serious and organised crime by Commonwealth, State and Territory agencies whose functions relate to unexplained wealth.

Extending these Commonwealth investigative powers to South Australia is necessary to ensure uniformity in powers between jurisdictions that participate in the NCSUW and to give law enforcement greater options in pursuing vital information in unexplained wealth cases.

This extension is also reasonable and proportionate as there are significant protections in the POCA that protects information obtained under these orders/notices. After obtaining this information, persons are only permitted to disclose it to specific authorities where there are reasonable grounds to believe that the disclosure will service a specific purpose (see Part 3 of Schedule 1 to the POCA). This includes disclosing to investigative or prosecutorial bodies to investigate a crime punishable by at least three years imprisonment.

There are also 'use protections' which attach to information obtained by production orders, which prevent this information from being admissible in criminal proceedings against the person who disclosed it (unless the proceedings relate to making or producing a false or misleading document under section 137.1 or 137.2 of the Criminal Code). 

Further, the use of production orders and notices to financial institutions is supervised by the Parliamentary Joint Committee on Law Enforcement, ensuring oversight for the exercise of these powers in relation to sharing information with South Australia.

Article 17 of the ICCPR includes a right to be protected against arbitrary or unlawful interference with a person’s home, family or correspondence. Prescribing additional ‘serious offences’ into Schedule 4 of the Regulations may engage the Article 17 right. This is because the restraint and confiscation powers within the POCA are maximised when the powers exist in relation to a serious offence.  For example, if a person is reasonably suspected of committing a serious offence, a court is able to make a restraining order against property under a person’s effective control and to forfeit this property unless a person can establish on the balance of probabilities the property is not derived from the proceeds of unlawful activity or the instrument of a serious offence.

If enhancing restraint and forfeiture for these serious offences limits the Article 17 right, it is necessary, reasonable and proportionate to achieve the legitimate objective of preserving public order and the rights and freedoms of those subject to serious criminal behaviour.

Equality before the law

Article 26 of the ICCPR provides that;

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 26 guarantees that all persons are equal before the law and are entitled to equal protection of the law. Currently, not all the different State and Territory unexplained wealth regimes are substantially incorporated under the Commonwealth POCA. This could lead to unequal application of the POCA in different jurisdictions across Australia.

The Amending Regulations promotes equality before the law under Article 26 as it ensures equal application of the POCA across different jurisdictions at Commonwealth, State and Territory levels. The inclusion of South Australia’s unexplained wealth legislation and the extension of the additional Victorian powers ensures the equal application of the unexplained wealth regime in all participating jurisdictions.

Conclusion

The Amending Regulations are compatible with human rights because they broadly promote the protection of human rights and to the extent they may limit human rights, those limitations are reasonable, necessary and proportionate to achieving a legitimate objective.

The Hon Tony Burke MP

Minister for Home Affairs