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

A restraining order1, which has been made under the Proceeds of Crime Act 2002 (Cth) (“POCA”), prohibits the disposal of, or dealing with, property that is the subject of that order.

There are some ways to overcome a restraining order, such as by applying to revoke a restraining order and/or by applying to exclude property from a restraining order (the most common).

Section 42(1) of the POCA provides that a person who was not notified of the application for a restraining order may apply to the court to revoke the order.

Proceedings brought under s 42 of the Act are effectively “strike-out” proceedings heard after the restraining orders are first made and before the matter proceeds any further.

The time within which to apply to revoke a restraining order is limited to 28 days from receiving notice of the restraining order.

It is possible to extend the time within which to apply for a revocation order (to a period not exceeding 3 months) provided that the application to extend time is also made within 28 days after the person is notified of the restraining order.

Pursuant to section 42(5) of the POCA, the Court may revoke the restraining order if 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.

Revocation orders are notoriously difficult to obtain. As such, applications of this kind are rarely made.

In DPP (Cth) v Tan [2003] NSWSC 717, Shaw J stated that (at [14]):

This is a tough test for the applicant to meet. It seems to me to mean there must be literally no grounds for the foundation of the order for it to be revoked.

The difficulty arising from a revocation application is enlivened by the statutory basis for a Court to make a restraining order, which is low.

Applications for restraining orders, in almost all circumstances, rely on a suspicion as to a certain set of circumstances as the basis for seeking a restraining order. If those suspicions are made on reasonable grounds, there is no discretion, the Court must make a restraining order.

In The Commissioner of Australian Federal Police v Tjongosutiono [2018] NSWSC 48, dealing with an application for a revocation order (which was dismissed), N Adams J stated that (between [107] and [108]):

The meaning of “suspicion” in this context is well established. In George v Rockett (1990) 170 CLR 104; [1990] HCA 26, the High Court approved the definition of “suspicion” given by Lord Devine in Hussien v Chong Fook Kam [1970] AC 942 at 948-949 as follows:

“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.” Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete.

But if arrest before that were forbidden, it would seriously hamper the police….

Their Lordships have not found any English authority in which reasonable suspicion has been equated with prima facie proof.

Suspicion can take into account matters that could not be put in evidence at all… Suspicion can take into account also matters which, though admissible, could not form part of a prima facie case.”

Therefore, to establish that there were no grounds for a restraining order, an applicant for a revocation application must establish that there are no grounds at all for the relevant suspicion.

Up until recently, there were no reported judgments in which an application to revoke a restraining order was made on the basis that it was in the interests of justice to do so.

The POCA was amended by the Crimes Legislation (Serious and Organised Crime) Act 2010 (Cth), which included amendments to section 42(5) to provide an additional ground upon which a Court might revoke a restraining order by providing that a Court may do so if satisfied that it is in the interests of justice.

As Martin CJ observed in Director of Public Prosecutions (Cth) v Kamal (2011) 248 FLR 64; [2011] WASCA 55 at [44]:

Given that these amendments were made following the decision in International Finance, it is reasonable to infer that the amendment to s 42 was made in response to that decision and, in particular, to address concerns expressed by some of the majority justices in that case relating to the lack of any facility to enforce the obligation to make full disclosure when proceeding ex parte in the CAR Act. The breadth of the power of revocation provided by the amendment would be sufficient to empower a court to revoke a restraining order because of the DPP’s failure to comply with the obligation of full disclosure.

What qualifies as “in the interests of justice” is wide, but not clear. What stands out from the decision in Kamal is that misstatements made, or the failure to make full disclosure, in an ex parte application for a restraining order could give rise to a revocation order under section 42(5)(b) of the POCA.

It is to be accepted that the statutory language of s 42(5)(b) of the Act does not limit the scope of the subsection to circumstances in which there has been non-disclosure, but the lack of any case in which it has ever been applied means there is little guidance as to in what other circumstances it could be applied beyond the terms of the provision in its statutory context, having regard to the Act’s objects5.

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.

Simon is a member of the Supreme Court of Victoria Proceeds of Crime & Confiscation List User Group.