How can I protect my assets from restraint or forfeiture?

Managing Principal
Proceeds of Crime & Confiscation Law
12 May 2023

If your assets are at risk of restraint or forfeiture, it is critical to seek legal advice urgently to ensure the best chance of preserving your property. This is a complex area involving intertwining State and federal jurisdiction, and requires specialist expertise across proceeds of crime and confiscation laws.

In most circumstances, your legal team will assist you in making an application to the Court for an exclusion order under either the Proceeds of Crime Act 2002 (Cth) or the Confiscation Act 1997 (Vic). In extremely rare cases, they may also be able to apply for a revocation order to reverse the effects of a restraining order. 

Exclusion Orders

Exclusion orders under the Proceeds of Crime Act

An exclusion order under the Proceeds of Crime Act can only be made before the court makes a forfeiture order, except in rare circumstances. The order will only be granted if the court is satisfied that the applicant’s interest in the property is not the result of, and has not been used as the instrument of, a criminal offence.

Exclusion Orders under the Confiscation Act

Applications for exclusion orders under the Confiscation Act are subject to strict timeframes. Any party with an interest in the restrained property can apply to exclude it from confiscation, but this must be done within 30 days of the issue of a restraining order, and within 60 days of the issue of a  forfeiture order. The order will only be granted if the court is satisfied that, on the balance of probabilities, the asset was lawfully purchased using lawfully earned funds.

Revocation Orders 

Made under section 42(5) of the Proceeds of Crime Act, revocation orders act to revoke a restraining order. These are extremely rare, and will only be granted if the court is satisfied that:

  1. there are no grounds on which to make the order at the time of considering the application to revoke the order; or
  2. it is otherwise in the interests of justice to do so. 

In the case of DPP (Cth) v Tan [2003] NSWSC 717, Justice Shaw noted that, because of the relatively low statutory threshold required for the court to make a restraining order, it would be an exceptionally tough test to establish that they had no grounds to do so. 

When to seek advice

If you are concerned that your assets are at risk of restraint or forfeiture, it is critical to act quickly. 

Madison Branson Lawyers’ Managing Principal Simon Tsapepas is a member of the Supreme Court of Victoria Proceeds of Crime & Confiscation List User Group.

For a confidential discussion, contact our Proceeds of Crime and Confiscation Law team today.

The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information is for general informational purposes only.

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