Proceeds of Crime Act 2002

CHAPTER 2 - THE CONFISCATION SCHEME  

PART 2-1 - RESTRAINING ORDERS  

Division 1 - Making restraining orders  

SECTION 20   Restraining orders - people suspected of deriving literary proceeds from indictable offences etc.  

When a restraining order must be made

20(1)  
A court with * proceeds jurisdiction must order that:


(a) property must not be disposed of or otherwise dealt with by any person; or


(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;

if:


(c) a *proceeds of crime authority applies for the order; and


(d) there are reasonable grounds to suspect that a person has committed an * indictable offence or a * foreign indictable offence, and that the person has derived * literary proceeds in relation to the offence; and


(e) any affidavit requirements in subsection (3) for the application have been met; and


(f) (unless there are no such requirements) the court is satisfied that the * authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.

Property that a restraining order may cover

20(2)  
The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:


(a) all or specified property of the * suspect;


(aa) all or specified * bankruptcy property of the suspect;


(b) all property of the suspect other than specified property;


(ba) all bankruptcy property of the suspect other than specified bankruptcy property;


(c) specified property of another person (whether or not that other person ' s identity is known) that is subject to the * effective control of the suspect. Affidavit requirements

20(3)  
The application for the order must be supported by an affidavit of an * authorised officer stating:


(a) if the * suspect has not been convicted of the offence - that the authorised officer suspects that the suspect committed the offence; and


(c) that the authorised officer suspects that the suspect derived * literary proceeds in relation to the offence; and


(d) if the application is to restrain property of a person other than the suspect but not to restrain * bankruptcy property of the suspect - that the authorised officer suspects that the property is subject to the * effective control of the suspect.

The affidavit must include the grounds on which the * authorised officer holds those suspicions.

Refusal to make a restraining order

20(4)  
Despite subsection (1), the court may refuse to make a * restraining order in relation to an * indictable offence that is not a * serious offence if the court is satisfied that it is not in the public interest to make the order.

Note:

A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21 .

Restraining order need not be based on commission of a particular offence

20(5)  
The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular * indictable offence or * foreign indictable offence (as the case requires). Risk of property being disposed of etc.

20(6)  
The court must make a * restraining order even if there is no risk of the property being disposed of or otherwise dealt with. Later acquisitions of property

20(7)  
The court may specify that a * restraining order covers property that is acquired by the * suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.




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