Australia: Restraining orders and the Proceeds of Crime Act 2002 (Cth)

Last Updated: 19 January 2017
Article by Swaab Author


Amongst the many powers of the Commissioner of the Australian Federal Police lies the ability to seize, confiscate and forfeit property suspected to be the proceeds or the instrument of a crime against the Commonwealth. These powers stem from the Proceeds of Crime Act 2002 (Cth) (POC Act).

Typically, this will relate to property that:
1              is derived from criminal activity;
2              is used in committing criminal activity;
3              belongs to a serious drug offender; or
4              belongs to an individual but cannot be explained how it was acquired.

The owner of the property does not themselves need to be the criminal offender. For example, a luxury yacht that may have been borrowed and used for importing illegal drugs may still be restrained and confiscated, regardless if the owner did not know of or was not even involved in the offending.

Another example is a bank account holder who runs a legitimate business may have cash deposits made into their bank account by client for the payment of services. However, the client may be a suspected money launderer (not to the knowledge of the bank account holder). This may cause the funds in the bank account be become "tainted" property and restrained.

After an investigation is initiated by the Australian Federal Police, the initial step often involves an application being made in the Supreme Court of New South Wales and restraining orders being made over the property, often in the absence of the defendant.

Once a restraining order is made, it becomes an offence for anyone to deal with the property in a manner contrary to the restraining orders. This may include any dealing with the property (such as relocating the property, selling the property or damaging the property). A caveat may be placed on a property, the locks to the house changed and any residents evicted.

As an extra protection mechanism, the Commissioner may seek an order that the property be seized and placed in the custody and control of Official Trustee in Bankruptcy, for safe keeping. This order is commonly sought in relation to motor vehicles or funds in a bank account, so that the potential loss of that asset is mitigated. This may cause the property to depreciate in value (which is often the case with motor vehicles) or interest generated on funds in a bank account being paid directly to the Official Trustee in Bankruptcy.

If a defendant does not take timely steps to revoke or exclude their interest from the restraining orders, the Commissioner can apply to have the property forfeited to the Commonwealth. In the circumstances that real property or a luxury car or yacht was restrained, this would mean that that asset would be liquidated or disposed and the proceeds retained by the Commonwealth.


It is important to note that in certain circumstances the Commissioner may apply for final forfeiture orders once certain restraining orders have been in place for 6 months. This means that if a defendant does not act fast to seek court orders to have their property returned, it may become too late.

There are several avenues available to a defendant who has an interest in restrained property to get their property back. However, many of these avenues have strict time limitation periods. Some of these avenues (but not all) are set out below.

A person may apply to have a restraining order "revoked", which in effect establishes a re-hearing of the restraining order application on new evidence adduced by both parties This application must be made within 28 days after that person was notified of the restraining order. On hearing the revocation application, a court may revoke the restraining order if satisfied that:

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

Another avenue is to "exclude" property from the restraining order. A party would need to establish that:

  1. their interest in the property is not the proceeds of certain specified indictable offences; or
  2. if an offence to which the restraining order relates to is a serious offence, that their interest is not an instrument of any serious offence.


As restraining order can have serious ramifications on an individual's property rights, it is important to contact a lawyer as soon as possible after being served with any application for restraining or forfeiture orders. At Swaab Attorneys we are able to advise you on the most appropriate avenue to defend your property rights and protect your interest in restrained property.

For further information please contact:

William Staples, Associate
Phone: +61 2 9233 5544

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions