Proceeds of Crime Act 2002

CHAPTER 2 - THE CONFISCATION SCHEME

PART 2-1 - RESTRAINING ORDERS

Division 1 - Making restraining orders

SECTION 20A Restraining orders - unexplained wealth

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When a restraining order must be made

20A(1)

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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

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(d) there are reasonable grounds to suspect that a person ' s *total wealth exceeds the value of the person ' s *wealth that was *lawfully acquired; and

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

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

(g) there are reasonable grounds to suspect either or both of the following:

(i) that the person has committed an offence against a law of the Commonwealth, a *foreign indictable offence, a *relevant offence of a *participating State, a *State offence that has a federal aspect or a *Territory offence;

(ii) that the whole or any part of the person ' s wealth was derived or realised, directly or indirectly, from an offence against a law of the Commonwealth, a foreign indictable offence, a relevant offence of a participating State, a State offence that has a federal aspect or a Territory offence.

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History

S 20A(1) amended by No 126 of 2018, s 3 and Sch 3 items 1 and 2, by substituting " , a *State offence that has a federal aspect or a *Territory offence " for " or a *State offence that has a federal aspect " in para (g)(i) and " , a State offence that has a federal aspect or a Territory offence " for " or a State offence that has a federal aspect " in para (g)(ii), effective 10 December 2018. No 126 of 2018, s 3 and Sch 3 item 10 contains the following application provision:

10 Application of amendments
10
The amendments apply to an application made after 10 December 2018 for an order in relation to a State offence that has a federal aspect or an offence against a law of a self-governing Territory, whether or not:

(a) the offence is committed, or is suspected of having been committed, before or after 10 December 2018; or

(b) the application relates to wealth that is acquired before or after 10 December 2018; or

(c) the application relates to property that is acquired before or after 10 December 2018; or

(d) the application relates to property that becomes subject to the effective control of a person before or after 10 December 2018.

S 20A(1) amended by No 126 of 2018, s 3 and Sch 2 items 1 and 2, by inserting " , a *relevant offence of a *participating State " in para (g)(i) and " , a relevant offence of a participating State " in para (g)(ii), effective 10 December 2018.

S 20A(1) amended by No 21 of 2018, s 3 and Sch 1 item 2, by inserting " or realised, directly or indirectly, " in para (g)(ii), applicable after 29 March 2018 in relation to property derived or realised, before or after 29 March 2018, from the commission of an offence occurring before or after 29 March 2018.

S 20A(1) amended by No 6 of 2015, s 3 and Sch 1 item 2, by substituting " must order " for " may order " , applicable in relation to a restraining order applied for under that section on or after 26 February 2015, whether the application relates to: (a) property or wealth acquired before, on or after 26 February 2015; or (b) an offence suspected of having been committed before, on or after 26 February 2015.

S 20A(1) amended by No 174 of 2011, s 3 and Sch 2 item 12, by substituting " a *proceeds of crime authority " for " the *DPP " in para (c), effective 1 January 2012. For application provisions see note under s 315B .

Property that a restraining order may cover

20A(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;

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

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

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

(e) 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.

Affidavit requirements

20A(3)
The application for the order must be supported by an affidavit of an *authorised officer stating:

(a) that the authorised officer suspects that the *total wealth of the *suspect exceeds the value of the suspect ' s *wealth that was *lawfully acquired; 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 the property is subject to the *effective control of the suspect; and

(c) that the authorised officer suspects either or both of the following:

(i) that the suspect has committed an offence against a law of the Commonwealth, a *foreign indictable offence, a *relevant offence of a *participating State, a *State offence that has a federal aspect or a *Territory offence;

(ii) that the whole or any part of the suspect ' s wealth was derived or realised, directly or indirectly, from an offence against a law of the Commonwealth, a foreign indictable offence, a relevant offence of a participating State, a State offence that has a federal aspect or a Territory offence.

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

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20A(3A)
(Repealed by No 6 of 2015)

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20A(3B)
(Repealed by No 6 of 2015)

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20A(3C)
(Repealed by No 6 of 2015)

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Refusal to make a restraining order

20A(4)

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Despite subsection (1), the court may refuse to make a *restraining order if the court is satisfied that:

(a) there are not reasonable grounds to suspect that the person ' s *total wealth exceeds by $100,000 or more the value of the person ' s *wealth that was *lawfully acquired; or

(b) (b) 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 .

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20A(4A)

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If the court refuses to make a *restraining order under this section, it may make any order as to costs it considers appropriate, including costs on an indemnity basis.

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Risk of property being disposed of etc

20A(5)

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

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Later acquisitions of property

20A(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.

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