Practical Hints

The clearest example is revocation: an application to revoke a restraining order must be made within 28 days of being notified of it, with any extension application also needing to be made within that same window, capped at a further 3 months. But time limits cut both ways in this Act. Where a restraining order made under section 18 or 19 has been in force for 6 months, the responsible authority can apply for a forfeiture order under section 47 or 49 respectively, and the court must grant it if satisfied with the relevant grounds. Critically, section 49(3) works the other way around to what might first seem intuitive: if no exclusion application has been made, or one was made but has since been withdrawn, the court doesn’t need to separately find that the property is genuinely proceeds of, or an instrument connected to, an offence at all, forfeiture can proceed on the administrative conditions alone. It’s only where a genuine exclusion application remains on foot, unresolved, that the court is actually required to make that substantive finding before forfeiture can occur. In other words, the six-month clock isn’t just a waiting period for the Commonwealth, bringing, and following through on, a genuine exclusion application is what forces the court to properly scrutinise whether the property is connected to crime at all, rather than letting forfeiture proceed unchallenged. 

Sale of Property 

Consider whether restrained property should be sold while an exclusion application is being heard, rather than sitting untouched for the duration of the proceedings. In practice, the responsible authority will generally consent to a sale proceeding, provided the net proceeds are held by the Official Trustee pending the outcome of the case. This can be a sensible way to preserve value in a depreciating or costly-to-maintain asset like a car, a business, or property requiring ongoing upkeep, without prejudicing either side’s position in the underlying dispute. 

Undertaking as to Damages 

Every restraining order made under sections 17, 18, or 19 carries an undertaking as to damages, and it’s worth turning your mind to whether that undertaking genuinely protects everyone affected by the order and not just the primary suspect, but any third party whose property or interests have been caught up in it. This undertaking, given by the Commonwealth (usually through the responsible authority acting on its behalf), is the only basis on which a claim can later be brought against the Commonwealth for loss suffered because of the restraining order. If the undertaking is inadequate, or doesn’t cover a particular person’s specific loss, there may be no other avenue of recovery available later, which makes it worth scrutinising closely at the time the order is made, not after the fact. 

Living and Business Expenses 

The Act allows a person whose property is restrained to apply under section 24 for a variation permitting reasonable living and business expenses to be paid from the restrained property, including expenses relating to their dependents and children. This is not, however, a mechanism for funding legal costs. The exclusion here is broader than it might first appear: it rules out using restrained funds not just for legal costs connected to the Proceeds of Crime proceedings themselves, but for legal costs in any connected criminal prosecution as well. Anyone hoping to draw on restrained assets to pay for their defence, in either matter, needs to plan for that expense from an unrestrained source instead. 

Police Affidavit 

Obtain a copy of the affidavit filed in support of the application for the restraining order as early as possible. Under sections 17, 18, and 19, a restraining order can only be made where an authorised officer’s affidavit sets out the grounds for their suspicion, whether that suspicion relates to the person having committed an offence, the property being proceeds or an instrument of an offence, or the property being under the suspect’s effective control. This affidavit is the evidentiary foundation the entire restraining order rests on, and reviewing it closely is often the first genuine opportunity to identify weaknesses that could support a later revocation or exclusion application. 

Identify the Type of Restraining Order 

Not all restraining orders are the same, and the type made against a person’s property carries real consequences for how forfeiture might eventually occur. 

Section 17 applies where a person has been convicted of, charged with, or is about to be charged with, an indictable offence. 

Section 18 applies more broadly to a person merely suspected and not yet charged of a serious offence. 

Section 19 is different in character again: it’s an in-rem order, targeting the property itself on the basis it’s suspected to be proceeds of an indictable offence or an instrument of a serious offence, regardless of whether a particular suspect has even been identified. 

The forfeiture pathway that follows depends entirely on which type of order is in play. Under section 92, property automatically forfeits, without any separate forfeiture order or court application and six months after conviction, provided the property remains covered by a section 17 or 18 order relating to that offence (a period that can be extended). Separately, under sections 47 and 49, forfeiture can occur without any conviction at all, once a section 18 or 19 restraining order has been in force for six months and the responsible authority applies to the court, a genuinely civil process, decided on the balance of probabilities rather than requiring proof beyond reasonable doubt. 

Identify All Interest Holders 

Every person with an interest in restrained property must take their own, individual steps to have that interest excluded or released, nobody else’s application automatically protects them. It’s essential to identify every person who holds an interest in the property, and the precise nature of that interest, at the earliest possible stage. A spouse, business partner, or family member with a genuine stake in restrained property who isn’t identified and doesn’t act in time can find their interest swept up in a forfeiture they had no real opportunity to contest.