Proceeds of Crime Act 2002

CHAPTER 2 - THE CONFISCATION SCHEME  

PART 2-1 - RESTRAINING ORDERS  

Division 5 - Further orders  

SECTION 39   Ancillary orders  

39(1)    
The court that made a * restraining order, or any other court that could have made the restraining order, may make any ancillary orders that the court considers appropriate and, without limiting the generality of this, the court may make any one or more of the following orders:

(a) an order varying the property covered by the * restraining order;

(b) an order varying a condition to which the restraining order is subject;

(c) an order relating to an undertaking required under section 21 ;

(ca) an order directing the *suspect in relation to the restraining order to give a sworn statement to a specified person, within a specified period, setting out all of his or her *interests in property, and his or her liabilities;

(d) an order directing the owner or a previous owner of the property (including, if the owner or previous owner is a body corporate, a specified * director of the body corporate) to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property;

(da) if the court is satisfied that there are reasonable grounds to suspect that a person (other than the owner or a previous owner) has information relevant to identifying, locating or quantifying the property - an order directing the person to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property;

(e) if the * Official Trustee is ordered under section 38 to take custody and control of property:

(i) an order regulating the manner in which the Official Trustee may exercise its powers or perform its duties under the restraining order; or

(ii) an order determining any question relating to the property, including a question relating to the liabilities of the owner or the exercise of powers or the performance of duties of the Official Trustee; or

(iii) an order directing any person to do anything necessary or convenient to enable the Official Trustee to take custody and control of the property;

(f) an order giving directions about the operation of the restraining order and any one or more of the following:

(i) a * forfeiture order that covers the same property as the restraining order;

(ii) a * pecuniary penalty order or a * literary proceeds order that relates to the same offence as the restraining order;

(g) an order requiring a person whose property is covered by a restraining order, or who has *effective control of property covered by a restraining order, to do anything necessary or convenient to bring the property within the jurisdiction.

Note 1:

If there is a pecuniary penalty order that relates to the same offence as a restraining order, the court may also order the Official Trustee to pay an amount equal to the relevant pecuniary penalty out of property covered by the restraining order: see section 282 .

Note 2:

If there is an unexplained wealth order that relates to a restraining order under section 20A , the court may also order the Official Trustee to pay an amount equal to the unexplained wealth amount out of property covered by the restraining order: see section 282A .

39(2)    
The court can only make an ancillary order on the application of:

(a) the *responsible authority; or

(b) the owner of the property covered by the order; or

(c) if the * Official Trustee was ordered to take custody and control of the property - the Official Trustee; or

(d) any other person who has the leave of the court.

39(3)    
A person who applies for an ancillary order must give written notice of the application to all other persons entitled to make such an application.

39(3A)    

Despite subsection (3), the court must consider an application for an ancillary order without notice having been given under that subsection if:

(a) the *responsible authority requests the court to do so; and

(b) the *restraining order to which the application relates was considered, in accordance with subsection 26(4) , without notice having been given.

39(4)    
An ancillary order may be made:

(a) if it is made by the court that made the * restraining order - when making the restraining order; or

(b) in any case - at any time after the restraining order is made.

39(4A)    

The court may, at any time before finally determining the application, direct the *responsible authority to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.

39(4B)    

If the court makes the ancillary order after a request under subsection (3A), the *responsible authority must give written notice to any person whom the authority reasonably believes may be affected by the order.

39(5)    
An order that is ancillary to a * restraining order does not cease to have effect merely because the restraining order, or part of it, ceases to be in force under subsection 45(4) or (5) .

Note:

A restraining order ceases to be in force under those subsections if a confiscation order covering the same property or relating to the same offence is satisfied.