Restraining orders under both the POCA and Confiscation Act are often obtained by authorities ex parte, which means that there will be no prior notice of an application to restrain property until after the order has been made. This is so to avoid dissipation of the property before any order could be made. Even if you are yet to be charged with an offence, the Court has the power to restrain property. There are strict time limitations which, if not observed, can result in property being irretrievably forfeited. It is therefore critical that legal advice is sought as soon as possible. Proceeds of Crime and Confiscation law is a complex area of law. You can read more information about different types of orders that may apply on our Proceeds of Crime page.
Madison Branson are leading experts in Confiscation and Proceeds of Crime law. We take the time to get to know the exact circumstances of every client’s situation in order to best represent their interests. In order to exclude property from restraint, applications for exclusion orders may need to be made to the Court.
A restraining order can be made under both the Federal legislation outlined in the Proceeds of Crime Act 2002 (Cth) (“POCA”) or the Victorian legislation, the Confiscation Act 1997 (Vic). The type of restraining order that can be made depends on what offence(s) have been, or are suspected to have been, committed. The restraining orders operate principally in the same way, in that they prohibit the disposal of or dealing with property that is the subject of the restraining order. These orders typically act as a precursor to more permanent orders, such as an order for forfeiture of property to the State of Victoria or the Commonwealth of Australia.
Why is my property being restrained?
There are several reasons why a Court may make an order to restrain property. For example:
- s17: if a person has been charged with or convicted of an indictable offence
- s18: if there are reasonable grounds to suspect that you have committed an offence*
- s19: where there are reasonable grounds for authorities to suspect that property is the proceeds or an instrument of an offence*
- s20: where there are reasonable grounds to suspect that you literary
- s20A: where there are reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired.
* applicable even if a person has not been charged, but are proposed to be.
For restraining orders to be made under the Confiscation Act, the Crown must first establish:
- s16(1): if a person has been, or within the next 48 hours (of the application for a restraining order) will be, charged with or has been convicted of a Schedule 1 offence
- s16(2AA): if it is believed that, within the next 48 hours, a person will be charged with a Schedule 2 offence, where a person has been charged with a Schedule 2 offence, or where a person has been convicted of a Schedule 2 offence
- s16(2A): if it is believed that, within the next 48 hours, a person will be charged with a serious drug offence, where a person has been charged with a serious drug offence, or where a person has been convicted of a serious drug offence
- s36K: where it is suspected that the property to be restrained is tainted property
- s40F(1): where it is suspected on reasonable grounds that a person has engaged in serious criminal activity, that person has an interest in the property, in the case of property located outside of Victoria – that serious criminal activity occurred within Victoria, and the total value of the property is $50,000.00 or more.
- s40(2): where it is suspected on reasonable grounds that the property was not lawfully acquired and either the property is located in Victoria or the person who acquired the property is ordinarily resident in Victoria.
When should I seek legal representation?
Restraining orders under both the POCA and Confiscations Act are often obtained by authorities ex parte, which means you will have no knowledge of any pending applications against your property until after the order has already been made. Even if you are yet to be charged with a crime, the court may have jurisdiction and power to order restraint or forfeiture of your property upon application of the authorities. It is therefore absolutely essential that legal representation is sought as soon as is absolutely possible. Proceeds of Crime and Confiscation law is an incredibly complex area of law. You can read more information about different types of orders that may apply on Madison Branson’s Proceeds of Crime page.
Madison Branson Lawyers are the leading experts in Confiscation and Proceeds of Crime law. Managing Principal Simon Tsapepas is a member of the Supreme Court of Victoria Proceeds of Crime & Confiscation List User Group.
We take the time to get to know the exact circumstances of every client’s situation in order to best represent their interests. In order to protect your assets, applications for orders such as exclusion orders will need to be made to the court, however there are strict time limits that apply. Even if you’re yet to be charged or convicted of a crime, it’s vital that you seek legal representation from proceeds of crime lawyers as early as possible.
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.