The Futility of a “Hug” from the Commonwealth: Property Restraining Orders and the Fight for Victim Compensation under the Commonwealth Proceeds of Crime Legislation

Over the past 20 years Australian proceeds of crime confiscation legislation has become increasingly robust, reflecting the widely accepted aim that “crime does not pay”. In recent years much has been written on the potentially harsh and unjust impact of Australian proceeds of crime legislation on innocent third parties. Most commonly, concern in this regard has focused on the risk of financial hardship to a criminal wrongdoer’s close family members and dependants. However, it is not only close family members and dependants that are impacted negatively by rigorous proceeds of crime legislation. The recent Victorian case of Richard Hogg involving the Federal Proceeds of Crime Act 2002 (Cth) provides a stark example of another category of affected innocent third parties previously not encountered or, at least, not reported – the victims of the criminal activity giving rise to the confiscation of the offender’s property. Using Hogg’s case as an illustration, this article explores this category of third parties impacted by proceeds of crime legislation and identifies the reforms needed to ensure that confiscation of proceeds of crime legislation operates fairly and equitably for victims of crime.