Proceeds of Crime Act 2002
In addition to this Division, section 44 provides for property to be excluded from a restraining order on the giving of satisfactory security.SECTION 29 Excluding property from certain restraining orders 29(1)
The court to which an application for a * restraining order under section 17 , 18 or 19 was made must, when the order is made or at a later time, exclude a specified *interest in property from the order if:
(a) an application is made under section 30 or 31 ; and
(b) the court is satisfied that the relevant reason under subsection (2) or (3) for excluding the interest from the order exists.
Section 32 may prevent the court from hearing the application until the responsible authority has had a reasonable opportunity to conduct an examination of the applicant.
The reasons for excluding a specified *interest in property from a * restraining order are:
(a) for a restraining order under section 17 if the offence, or any of the offences, to which the order relates is a * serious offence - the interest is neither * proceeds nor an * instrument of * unlawful activity; or
(b) for a restraining order under section 17 if paragraph (a) does not apply - the interest is neither proceeds nor an instrument of the offence, or any offence, to which the order relates; or
(c) for a restraining order under section 18 - the interest is neither:
(i) in any case - proceeds of unlawful activity; nor
(ii) if an offence to which the order relates is a serious offence - an * instrument of any serious offence; or
(d) for a restraining order under section 19 - the interest is neither:
(i) in any case - proceeds of an * indictable offence, a * foreign indictable offence or an * indictable offence of Commonwealth concern; nor
(ii) if an offence to which the order relates is a serious offence - an * instrument of any serious offence.
One of the circumstances in which property ceases to be proceeds of an offence or unlawful activity involves acquisition of the property by an innocent third party for sufficient consideration: see paragraph 330(4)(a) .
If the offence, or each offence, to which a * restraining order relates is a * serious offence that is an offence against section 15 , 24 , 29 or 31 of the Financial Transaction Reports Act 1988 or section 53 , 59 , 136 , 137 , 139 , 140 , 141 , 142 or 143 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 , a further reason for excluding a specified *interest in property from the order is that each of the following requirements is met:
(a) there are no reasonable grounds to suspect that the interest is * proceeds of the offence, or any of the offences;
(b) there is a * suspect in relation to the order, but he or she has not been convicted of, or charged with, the offence, or any of the offences;
(c) the conduct in question was not for the purpose of, in preparation for, or in contemplation of, any other * indictable offence, any * State indictable offence or any * foreign indictable offence;
(d) the interest could not have been covered by a restraining order if none of the offences had been serious offences.
[ CCH Note: S 29(3) will be amended by No 133 of 2020, s 3 and Sch 1 item 119, by substituting " former section 59 or section " for " 59, " , effective 17 June 2022.]
However, the court must not exclude a specified *interest in property from a * restraining order under section 17 or 18 unless it is also satisfied that neither a * pecuniary penalty order nor a * literary proceeds order could be made against:
(a) the person who has the interest; or
(b) if the interest is not held by the * suspect but is under his or her * effective control - the suspect.