Revocation and Exclusion

Revocation 

Revoking a restraining order means asking the court to set the order aside altogether. Under section 42 of the Act, there are two distinct grounds on which a court may do this. 

• The first ground: “no grounds” for making the order. This requires showing there were no grounds on which to make the restraining order at the time the revocation application is being considered, not at the time the order was originally made. This is a genuinely high bar. Courts have described this as an exceptionally tough test to meet, precisely because the threshold required to obtain a restraining order in the first place is comparatively low, if a court only needed limited grounds to make the order, showing there were none at all is correspondingly difficult. 

• The second ground: the “interests of justice.” This is a broader basis for revocation, and it often turns on identifying genuine deficiencies in the investigation or the original application for the order. Where evidence underpinning the restraining order was obtained illegally, or where the court that made the order was misled by the applicant, usually the AFP or the responsible Commonwealth authority, a revocation application built on this ground may succeed. 

The deadline: a revocation application must be made within 28 days of being notified of the restraining order. This period can be extended, but only where the person applies to the court within that same 28-day window for an extension, and even then, the court’s discretion to extend is capped at a further period not exceeding 3 months. There is no mechanism to seek an extension once the initial 28-day period has already lapsed without an application having been made, which makes early legal advice essential the moment a restraining order is received. 

Exclusion Orders 

Where the goal isn’t to unwind the entire restraining order but simply to carve out a specific piece of property from it, an exclusion order is the relevant mechanism. This is available whether a restraining order has already been made over the property, or an application for one has been made but not yet granted, under sections 29 through 31 of the Act. 

The specific basis for exclusion depends on which section the restraining order was made under, and whether the underlying offence is classified as a “serious offence.” In broad terms, a court must exclude a specified interest if satisfied the property is not connected to the relevant unlawful activity or offence, for example, that it is neither proceeds nor an instrument of the offence in question. A separate, narrower ground applies specifically to restraining orders made under section 20A, where the interest can be excluded on the basis that it belongs to someone other than the suspect and is not subject to the suspect’s effective control. 

Even where these grounds are made out, a court cannot exclude an interest from a restraining order made under section 17 or 18 unless it is also satisfied that no pecuniary penalty order or literary proceeds order could separately be made against the relevant person, an additional hurdle that’s easy to overlook. 

Timing also matters here. An application made before a restraining order has been made falls under section 30. An application made after the order is already in force falls under section 31, but section 31 comes with a significant restriction: if you were notified of the original application and either failed to appear or did appear at that hearing, you generally cannot bring a later exclusion application unless the court grants leave, based on a good reason for your earlier absence, genuinely new evidence, or other special grounds. 

Variation for Living and Business Expenses 

Even where property remains subject to a restraining order, section 24 of the Act allows a court to release funds from restrained property to meet the reasonable living expenses of the restrained person and their dependants, their reasonable business expenses, or a specified debt incurred in good faith. 

This isn’t a simple request, however. The person must personally apply for the order, give written notice of the application to the responsible authority, and disclose all of their property interests and liabilities in a sworn statement filed with the court. The court must also be satisfied the person genuinely cannot meet the expense from property that isn’t otherwise restrained. 

One significant limitation is worth flagging clearly: these variations cannot be used to fund legal costs, and this exclusion is broader than many people expect. It doesn’t just block funding for defending the Proceeds of Crime proceedings themselves; it also blocks using restrained funds to pay legal costs connected to any separate criminal prosecution under Commonwealth, State, or Territory law. Anyone hoping to use restrained funds to pay for a defence, in either the confiscation matter or a related criminal case, will find that avenue closed off and needs to plan for it separately. 

What Happens to Property That Isn’t Excluded 

Any restrained property that isn’t the subject of a successful exclusion application remains exposed. It can ultimately be forfeited to the Commonwealth once the matter progresses to that stage. 

The Next Stage: Defending Forfeiture 

Successfully excluding property from a restraining order, or having the order revoked, doesn’t necessarily end the matter if forfeiture proceedings are subsequently brought. The next stage in the process, where relevant, is defending the responsible authority’s application for forfeiture itself, a separate fight with its own tests and evidentiary burdens. 

Why Timing Is Everything 

Strict, largely non-negotiable timelines apply throughout this process, from the 28-day window to seek revocation, to the deadlines that apply to exclusion and forfeiture-related applications further down the track. Missing any of these windows can mean losing the opportunity to protect property that might otherwise have been recoverable. Given how unforgiving these timeframes are, it is critical to consult a lawyer as early as possible once a restraining order has been made or notified, to ensure nothing is lost simply because a deadline passed unaddressed.