Orders to restrain property are made by a Judge of a County, Supreme or District Court and mean that property stays restrained until that Court decides to release it or forfeit it to the government.
There are two categories of restraining orders. Suspect-based orders which are made when an individual is suspected of committing an offence, and allows for the restraining of any property owned, or controlled by the suspected person. Property-based restraining orders are applied for when a specific asset can be connected with an alleged offence.
Restraining orders can be applied for before a person is charged, or after. For this reason, it is important to get legal advice as soon as a person suspects that the police may be considering applying for a restraining order.
Importantly, the property which could be restrained is not limited to property legally owned by the suspected person, but includes property belonging to another person that is under the “effective control” of the suspected person, and property which belongs to another person which is suspected to be the proceeds of certain crimes.
It is often necessary for family members of accused people to obtain legal advice as well in order to prevent their assets being caught up in an application.
While property is restrained it cannot be sold, rented, mortgaged or otherwise dealt with without the consent of the AFP. In most instances, where the owner of a property is residing in that home, they will be allowed to continue living in it. Where a property is tenanted, that tenants will not be impacted as a restraining order does not affect existing legal interests.
The next stage in Proceeds of Crime Act litigation is focussed on protecting property interests and releasing property from a restraining order by way of Revocation Application, Exclusion Applications and Compensation Application.
Watch this video for an explanation of restraining orders related to property confiscations: What is a restraining order?
