What is Exclusion”?
If you have an interest in property against which a Restraining Order has been made, you can make an Exclusion Application. This could mean that some of your property is not included in the Restraining Order.When can I make an Exclusion Application?
- Within 30 days of receiving notice that a Restraining Order has been made, if such notice was required; or
- Otherwise within 30 days of the Restraining Order being made; or
- In cases where the Crown seeks Automatic Forfeiture, you have an additional right to seek exclusion from a Restraining Order within 60 days of conviction
It is very important to comply with these time frames, however, these times can be extended if it is “in the interests of justice”. It is important to note that the court can not extend the period to lodge your exclusion application if the property has already been forfeited. If you have missed any of these time frames, you should still talk to your lawyer immediately about whether you can apply for exclusion.
Property may be excluded from a Restraining Order if a person is able to establish:
What do I need to do if I apply for Exclusion?
If you apply for exclusion, you need to give notice of the application and the grounds on which it is made to the person who applied for the restraining order and to any other affected person. However, in some specific cases, you don’t need to give notice of the grounds until a charge against you is finally determined or withdrawn. It is usual to have the Restraining Order hearing delayed until after any criminal charges are dealt with.What protections do I have in my Exclusion Application?
There are protections for a person who makes an Exclusion Application and has current criminal charges. This includes a limit on the use of statements or evidence given by you, and any information, documents or things obtained directly or indirectly as a consequence of the statement or evidence. The material is admissible in proceedings for perjury or any proceeding under the Confiscation Act. However, unless the property needs to be sold, the usual course is to defer an application pursuant to section 20(7).Can I get my property excluded from a Restraining Order made for the purpose of satisfying a Forfeiture Order?
If a Restraining Order is granted in relation to a schedule 1 offence (other than to satisfy Automatic Forfeiture referred to in s 15(1)(b) – (more on Automatic Forfeiture to follow) a person can apply to have their property excluded from the operation of the restraining order.Property may be excluded from a Restraining Order if a person is able to establish:
- the property is not tainted property; and
- the property will not be required to satisfy any purpose for which the restraining order was made
