Proceeds of Crime Act 2002
CHAPTER 2
-
THE CONFISCATION SCHEME
PART 2-1
-
RESTRAINING ORDERS
Division 3
-
Excluding property from restraining orders
The court to which an application for a * restraining order under section 17 , 18 or 19 was made must, when the order is made or at a later time, exclude a specified *interest in property from the order if: (a) an application is made under section 30 or 31 ; and (b) the court is satisfied that the relevant reason under subsection (2) or (3) for excluding the interest from the order exists.
29(2)
The reasons for excluding a specified *interest in property from a * restraining order are: (a) for a restraining order under section 17 if the offence, or any of the offences, to which the order relates is a * serious offence - the interest is neither * proceeds nor an * instrument of * unlawful activity; or (b) for a restraining order under section 17 if paragraph (a) does not apply - the interest is neither proceeds nor an instrument of the offence, or any offence, to which the order relates; or (c) for a restraining order under section 18 - the interest is neither:
29(3)
If the offence, or each offence, to which a * restraining order relates is a * serious offence that is an offence against section 15 , 24 , 29 or 31 of the Financial Transaction Reports Act 1988 or section 53 , former section 59 or section 136 , 137 , 139 , 140 , 141 , 142 or 143 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 , a further reason for excluding a specified *interest in property from the order is that each of the following requirements is met: (a) there are no reasonable grounds to suspect that the interest is * proceeds of the offence, or any of the offences; (b) there is a * suspect in relation to the order, but he or she has not been convicted of, or charged with, the offence, or any of the offences; (c) the conduct in question was not for the purpose of, in preparation for, or in contemplation of, any other * indictable offence, any * State indictable offence or any * foreign indictable offence; (d) the interest could not have been covered by a restraining order if none of the offences had been serious offences.
29(4)
However, the court must not exclude a specified *interest in property from a * restraining order under section 17 or 18 unless it is also satisfied that neither a * pecuniary penalty order nor a * literary proceeds order could be made against: (a) the person who has the interest; or (b) if the interest is not held by the * suspect but is under his or her * effective control - the suspect.
Note:
In addition to this Division, section 44 provides for property to be excluded from a restraining order on the giving of satisfactory security.
SECTION 29 Excluding property from certain restraining orders 29(1)The court to which an application for a * restraining order under section 17 , 18 or 19 was made must, when the order is made or at a later time, exclude a specified *interest in property from the order if: (a) an application is made under section 30 or 31 ; and (b) the court is satisfied that the relevant reason under subsection (2) or (3) for excluding the interest from the order exists.
Note:
Section 32 may prevent the court from hearing the application until the responsible authority has had a reasonable opportunity to conduct an examination of the applicant.
View history note
Hide history note29(2)
The reasons for excluding a specified *interest in property from a * restraining order are: (a) for a restraining order under section 17 if the offence, or any of the offences, to which the order relates is a * serious offence - the interest is neither * proceeds nor an * instrument of * unlawful activity; or (b) for a restraining order under section 17 if paragraph (a) does not apply - the interest is neither proceeds nor an instrument of the offence, or any offence, to which the order relates; or (c) for a restraining order under section 18 - the interest is neither:
(i) in any case - proceeds of unlawful activity; nor
(d) for a restraining order under section 19 - the interest is neither:
(ii) if an offence to which the order relates is a serious offence - an * instrument of any serious offence; or
(i) in any case - proceeds of an * indictable offence, a * foreign indictable offence or an * indictable offence of Commonwealth concern; nor
(ii) if an offence to which the order relates is a serious offence - an * instrument of any serious offence.
Note:
One of the circumstances in which property ceases to be proceeds of an offence or unlawful activity involves acquisition of the property by an innocent third party for sufficient consideration: see paragraph 330(4)(a) .
29(3)
If the offence, or each offence, to which a * restraining order relates is a * serious offence that is an offence against section 15 , 24 , 29 or 31 of the Financial Transaction Reports Act 1988 or section 53 , former section 59 or section 136 , 137 , 139 , 140 , 141 , 142 or 143 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 , a further reason for excluding a specified *interest in property from the order is that each of the following requirements is met: (a) there are no reasonable grounds to suspect that the interest is * proceeds of the offence, or any of the offences; (b) there is a * suspect in relation to the order, but he or she has not been convicted of, or charged with, the offence, or any of the offences; (c) the conduct in question was not for the purpose of, in preparation for, or in contemplation of, any other * indictable offence, any * State indictable offence or any * foreign indictable offence; (d) the interest could not have been covered by a restraining order if none of the offences had been serious offences.
29(4)
However, the court must not exclude a specified *interest in property from a * restraining order under section 17 or 18 unless it is also satisfied that neither a * pecuniary penalty order nor a * literary proceeds order could be made against: (a) the person who has the interest; or (b) if the interest is not held by the * suspect but is under his or her * effective control - the suspect.
This information is provided by CCH Australia Limited Link opens in new window. View the disclaimer and notice of copyright.