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:
is derived from criminal activity;
is used in committing criminal activity;
belongs to a serious drug offender; or
belongs to an individual but cannot be explained how it was
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
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.
DEFENDING RESTRAINING ORDER APPLICATIONS
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
there are no grounds on which to make the restraining order at
the time of considering the application to revoke the order;
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:
their interest in the property is not the proceeds of certain
specified indictable offences; or
if an offence to which the restraining order relates to is a
serious offence, that their interest is not an instrument of any
WHAT DOES THIS MEAN FOR YOU
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
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