Publications

Restraining orders made under the Proceeds of Crime Act 2002 (Cth)

7th of June 2018

The Proceeds of Crime Act 2002 (Cth) (“POCA”) is complex legislation and is often described by judges as draconian. Its principal objects are designed to deprive persons of the proceeds of offences, the instruments of offences, and benefits derived from offences, against the laws of the Commonwealth or the non-governing Territories. Other principal objects include depriving persons of unexplained wealth amounts that the person cannot satisfy a Court were not derived from certain offences, and punishing and deterring persons from committing offences.

To achieve this, the POCA sets out a scheme to confiscate proceeds of crime and includes freezing orders, restraining orders, forfeiture orders and pecuniary penalty orders.

Restraining orders prohibit the disposal of, or dealing with, property and are often obtained ex parte, meaning that there will be no notice of the application for the restraining order until after the order is made. This is so to avoid dissipation of the property before any order could be made if notice of the application were to be given. Other than to prevent the dealings with the property, the function of a restraining order is to make the property available for forfeiture.

There are five types of restraining orders under the POCA. They can be obtained pursuant to:
1. section 17 on the basis that 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;
2. section 18 on the basis that there are reasonable grounds to suspect that a person has committed a serious offence ;
3. section 19 on the basis that there are reasonable grounds to suspect that the property is:
(a) 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
(b) an instrument of a serious offence.
4. section 20 on the basis that there are reasonable grounds to suspect that a person has committed an indictable offence or a foreign indicatable offence, and that the person has derived literary proceeds in relation to the offence ;
5. section 20A on the basis that there are reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired.

The most common restraining orders are granted pursuant to sections 17, 18 and 19 of the POCA. There are strict time limitations which, if not observed, can result in property being irretrievably forfeited to the Commonwealth. 

Accordingly, if you are affected by a restraining order, it is imperative that you seek legal advice urgently. As specialists in this area, Madison Branson Lawyers can assist you. For further information, do not hesitate to contact Mr Simon Tsapepas T: 03 8862 6329, E: s@madisonbranson.com, W: www.madisonbranson.com


 

[1] Indictable offence means an offence against a law of the Commonwealth, or a non-governing Territory, that may be dealt with as an indictable offence (even if it may also be dealt with as a summary offence in some circumstances)
[1] Serious offence has an expansive definition. See section 338 of the POCA
[1] Property is an instrument of an offence if:
(a)    The property is used in, or in connection with, the commission of an offence; or
(b)    The property is intended to be used in, or in connection with, the commission of an offence, whether the property is situated within or outside Australia

[1] Literary proceeds means any benefit that a person derives from the commercial exploitation of:
(a)    the person's notoriety resulting, directly or indirectly, from the person committing an indictable offence or a foreign indictable offence; or
(b)    the notoriety of another person, involved in the commission of that offence, resulting from the first-mentioned person committing that offence

[1] In DPP (Cth) v Corby [2007] QCA 58, a restraining order was granted in relation to any payments to be made by Pan Macmillan Australia Pty Ltd to a number of persons (including Schapelle Corby) arising from the publication of a book "My Story — SCHAPELLE CORBY with Kathryn Bonella”