Proceeds of Crime Act 2002

CHAPTER 2 - THE CONFISCATION SCHEME  

PART 2-1 - RESTRAINING ORDERS  

Division 1 - Making restraining orders  

SECTION 19   Restraining orders - property suspected of being proceeds of indictable offences etc.  

When a restraining order must be made

19(1)    
A court with * proceeds jurisdiction must order that:

(a) property must not be disposed of or otherwise dealt with by any person; or

(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;

if:

(c) a *proceeds of crime authority applies for the order; and

(d) there are reasonable grounds to suspect that the property is:

(i) the * proceeds of a * terrorism offence or any other * indictable offence, a * foreign indictable offence or an * indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); or

(ii) an * instrument of a *serious offence; and

(e) the application for the order is supported by an affidavit of an * authorised officer stating that the authorised officer suspects that:

(i) in any case - the property is proceeds of the offence; or

(ii) if the offence to which the order relates is a serious offence - the property is an * instrument of the offence;

and including the grounds on which the authorised officer holds the suspicion; and

(f) the court is satisfied that the * authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.

Property that a restraining order may cover

19(2)    
The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is:

(a) in any case - * proceeds of the offence; or

(b) if the offence to which the order relates is a * serious offence - an * instrument of the offence.

Refusal to make a restraining order

19(3)    
Despite subsection (1), the court may refuse to make a * restraining order in relation to an * indictable offence that is not a * serious offence if the court is satisfied that it is not in the public interest to make the order.

Note:

A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21 .

Restraining order need not be based on commission of a particular offence

19(4)    

The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular offence.

Risk of property being disposed of etc.

19(5)    
The court must make a * restraining order even if there is no risk of the property being disposed of or otherwise dealt with.