Restraining Orders relating to unexplained wealth – s 20A Restraining Orders pertaining to unexplained wealth were introduced via the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth). The unique element of unexplained wealth orders is that there are reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s […]Continue reading
Allowance for Expenses The court has a discretion to allow reasonable living expenses / reasonable business expenses / a specified debt incurred in good faith by that person to be met out of property covered by a restraining order,[1] if inter alia, the court is satisfied that the person cannot meet the expense or debt […]Continue reading
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 […]Continue reading
Brief History of Asset Confiscation Law in Australia The genesis of asset confiscation law most probably lies in the common law concepts of attainder and corruption of blood.[1] Attainder was believed to have emerged in 1308,[2] and is a concept under which the civil rights and capacities of the offender (including the right to hold, […]Continue reading
Revoking a Restraining Order If a restraining order was made ex-parte, a person may apply to the court to revoke the order.[1] The application must be made within 28 days.[2] This time period can be extended for up to 3 months if the court allows.[3] The applicant must give written notice to the AFP and […]Continue reading
Proceeds of Crime Examinations Compulsory examinations are one of the most powerful tools that come out of the POCA. They are broadly analogous to coercive examination powers contained in state confiscation legislation (which is run by the NSW Crime Commission in NSW), and coercive examination powers in ICAC inquiries. Often Examinations are sought in the […]Continue reading
Custody and Control Part of the POCA regime is to allow the Official Trustee (being AFSA) to take custody and control of property covered by a restraining order if the court is satisfied that this is required. This is obviously required to give effect to restraining orders and stop people dissipating certain property.
Production Orders A production order is a Magistrate made order under the application of an AFP Officer for documents. The documents requested have a broad ambit,[1] and are predominantly aimed at identifying, locating or quantifying property for POCA proceedings. The test is that the Magistrate is satisfied by information on oath that the person is […]Continue reading
Ancillary Orders The court that made a restraining order, or any other court that could have made the restraining order, may make any ancillary orders.[1] Ancillary orders are generally directed at giving effect to restraining orders inter alia. Ancillary order examples include: An order directing the suspect in relation to the restraining order to give […]Continue reading
Notices to Financial Institutions A notice to a financial institution is a notice authorised by a senior executive AFP employee (or higher), requiring the financial institution to provide information to an AFP member. The information requested can be broad and can include whether the person holds an account, is a signatory to an account, as […]Continue reading
