Restraining Orders relating to literary proceeds from indictable offences – s 20

This Restraining Order allows the restraint of property of a person where there are reasonable grounds to suspect that a person has committed an indictable offence and the person has derived literary proceeds[1] in relation to the offence. Literary proceeds are any benefit that a person derives from the commercial exploitation of the person’s notoriety resulting, directly or indirectly, from the person committing an indictable offence.[2] Commercial exploitation includes publishing in written or electronic form, any use of media from which visual images, words or sounds can be produced, or any live entertainment, representation or interview.[3]

The required elements for a successful s 20 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 a person has committed an indictable offence,[4] and the person has derived literary proceeds in relation to the offence;
• Affidavit requirements of the authorised officer are met;[5]
• The court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.

The property in question can either be specified property or all property of the suspect.[6] The order can specify that the Restraining Order covers property that is acquired by the suspect after the court makes the order.[7]

[1] Defined in S 153 Proceeds of Crime Act 2002 (Cth).

[2] S 153(1)(a) Proceeds of Crime Act 2002 (Cth) – or a foreign indictable offence.

[3] S 153(2) Proceeds of Crime Act 2002 (Cth).

[4] Or a foreign indictable offence – s 20(1)(d) Proceeds of Crime Act 2002 (Cth).

[5] See S 20(3) Proceeds of Crime Act 2002 (Cth).

[6] S 20(2)(a) Proceeds of Crime Act 2002 (Cth).

[7] S 20(7) Proceeds of Crime Act 2002 (Cth).

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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