When can a Restraining Order be made?

Managing Principal
Proceeds of Crime & Confiscation Law
10 May 2023

A restraining order can be made under both the Proceeds of Crime Act 2002 (Cth) and the Confiscation Act 1997 (Vic) depending on the nature of the offence and the jurisdiction in which it occurs. A restraining order prohibits an offender from dealing with, or disposing of, their assets.

Restraining orders are almost always obtained “ex parte”. This means that they can be imposed by a judge without the suspect being present in court. It is therefore common for suspects not to be aware of the existence of a restraining order against them until it actually comes into effect. 

Restraining orders under both acts typically operate as a prelude to a forfeiture order, or in an effort to protect or preserve property for future confiscation.  It is possible for assets to be subject to a restraining order alongside a further order (such as a civil forfeiture order, or an unexplained wealth order).

Restraining orders under the Proceeds of Crime Act

Pursuant to the Proceeds of Crime Act (“POCA”), a restraining order can be made under five discrete sets of circumstances. These are:

  • Section 17 – Where a suspect has been charged with, or convicted of an indictable offence.
  • Section 18 – Where there are reasonable grounds to suspect that an offence has been committed (a formal charge is not necessary).
  • Section 19 – Where there are reasonable grounds to suspect that an asset constitutes the proceeds or instrument of an offence (a formal charge is not necessary).
  • Section 20 – Where there are reasonable grounds to suspect that literary proceeds have been derived from the exploitation of an indictable offence. Literary proceeds are defined as any benefit that a person derives from the commercial exploitation of notoriety which has resulted from their commission of an indictable offence. 
  • Section 20A – Where there are reasonable grounds to suspect that a suspect has unexplained wealth.

Restraining orders under the Confiscation Act

A restraining order can also be made under Section 14 of the Victorian Confiscation Act. It can apply to any and all property belonging to the accused. It can also include specified property which belongs to another person but which is connected to the offending or offender. 

Section 15 of the Confiscation Act also allows a restraining order to be used to preserve property in order to make it available to compensate victims of crime in Victoria under the Sentencing Act  1991.

When to seek advice

Madison Branson are experts in this complex area of the law. If you are concerned that you may be at risk of becoming subject to a restraining order, it is important to seek advice 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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