Excluding Property from Restraining Orders (ss 17, 18, or 19)

In order to get an interest excluded from a restraining order, generally speaking, the court must be satisfied that the specified interest in property is neither proceeds, nor an instrument.[1]

If an ex-parte restraining order is made, a person whom claims an interest in property that is covered by the restraining order may seek an exclusion application.[2]

The court must not hear an application to exclude specified property from the restraining order is the restraining order is in force and the AFP has not been given a reasonable opportunity to conduct examinations in relation to the application.

Excluding property from a section 17 and/or section 18 restraining order can also not occur unless the court is satisfied that neither a PPO or literary proceeds order could be made against the person who has the interest (or is under their effective control). If the AFP have sought a PPO in their originating Summons in relation to the matter, this may present an issue in this respect.[3] At the very least it will bring into argument the question as to whether a PPO could be made.

Applications for exclusion can also occur if the person is put on notice of the upcoming restraining order application.[4]

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[1] S 29 Proceeds of Crime Act 2002 (Cth).

[2] S 31 Proceeds of Crime Act 2002 (Cth).

[4] S 29(4) Proceeds of Crime Act 2002 (Cth).

[5] S 30 Proceeds of Crime Act 2002 (Cth).

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