Restraining Orders relating to property (in rem) suspected of being proceeds of indictable offences – s 19

This Restraining Order allows the restraint of property where there are reasonable grounds for suspecting the property is the proceeds of an indictable offence inter alia,[1] or an instrument of a serious offence.

Generally, proceeds of an offence is property that is partly or wholly derived or realised, directly or indirectly, from the commission of the offence.[2]

Generally, an instrument of an offence is property that is intended to be, or is used in, or in connection with, the commission of an offence.[3]

The required elements for a successful s 19 Restraining Order are:

• The application is heard before a court with proceeds jurisdiction;
• A proceeds of crime authority applies for the order;
• There are reasonable grounds to suspect that the property is either:
  • The proceeds of an indictable offence;[4]
  • An instrument of a serious offence;
• The application for the order is supported by an affidavit of an authorised officer stating that the authorised officer suspects that:
  • In any case – the property is the proceeds of the offence; or
  • If the offence to which the order relates is a serious offence – the property is an instrument of the offence;

and including the grounds on which the authorised officer holds the suspicion.

• The court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds;

[1] See ss 19(1)(d)(i) & 338 Proceeds of Crime Act 2002 (Cth) – proceeds of a terrorism offence, a foreign indictable offence, or an indictable offence of a Commonwealth concern.

[2] See ss 329 & 330 Proceeds of Crime Act 2002 (Cth) for a comprehensive definition of proceeds.

[3] See ss 329 & 330 Proceeds of Crime Act 2002 (Cth) for a comprehensive definition of instrument.

[4] S 19(1)(d)(i) – Or proceeds of a terrorism offence, or a foreign indictable offence, or an indictable offence of Commonwealth concern.

About Post Author

Brian Walker

B.Acc., GradDipLegPrac, Juris Dr
Barrister & Accountant.
Former Criminal Defence Solicitor. Former Federal Prosecutor for the Commonwealth Director of Public Prosecutions prosecuting Commonwealth crimes relating to drugs and child exploitation. Former Australian Federal Police member litigating proceeds of crime matters. Former Australian Taxation Office employee investigating offshore tax evasion matters.

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