Proceeds of Crime Act 2002

CHAPTER 2 - THE CONFISCATION SCHEME  

PART 2-1 - RESTRAINING ORDERS  

Division 1 - Making restraining orders  

SECTION 17   Restraining orders - people convicted of or charged with indictable offences  

When a restraining order must be made

17(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) a person has been convicted of, or has been charged with, an * indictable offence, or it is proposed that he or she be charged with an indictable offence; and

(e) any affidavit requirements in subsection (3) for the application have been met; and

(f) (unless there are no such requirements) the court is satisfied that the * authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.

Property that a restraining order may cover

17(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 any one or more of the following:

(a) all or specified property of the * suspect;

(aa) all or specified * bankruptcy property of the suspect;

(b) all property of the suspect other than specified property;

(ba) all bankruptcy property of the suspect other than specified bankruptcy property;

(c) specified property of another person (whether or not that other person ' s identity is known) that is subject to the * effective control of the suspect;

(d) specified property of another person (whether or not that other person ' s identity is known) that is * proceeds of the offence or an * instrument of the offence.

Affidavit requirements

17(3)    
The application for the order must be supported by an affidavit of an * authorised officer stating:

(a) if the * suspect has not been convicted of an indictable offence - that the authorised officer suspects that the suspect committed the offence; and

(b) if the application is to restrain property of a person other than the suspect but not to restrain * bankruptcy property of the suspect - that the authorised officer suspects that:

(i) the property is subject to the * effective control of the suspect; or

(ii) the property is * proceeds of the offence or an * instrument of the offence.

The affidavit must include the grounds on which the * authorised officer holds those suspicions.

Refusal to make a restraining order

17(4)    
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 .

Risk of property being disposed of etc.

17(5)    
The court must make a * restraining order even if there is no risk of the property being disposed of or otherwise dealt with.

Later acquisitions of property

17(6)    
The court may specify that a * restraining order covers property that is acquired by the * suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.