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

Last Updated: 19 January 2017
Article by William Staples


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.

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