Restraining Orders Under the Victorian Confiscation Act
The article Restraining Orders Under the Victorian Confiscation Act is written by Brittany Llewellyn, Lawyer, Doogue + George Defence Lawyers.
Brittany holds a Juris Doctor and Bachelor of Arts with Honours from the University of Melbourne. She is notably experienced in criminal cases related to sexual crimes, drug courts, and therapeutic jurisprudence.
Before becoming a part of Doogue + George, Brittany served as a Judge's Associate to his Honour Judge Higham and worked exclusively in the County Court's criminal division. She has also worked as a Research Assistant, volunteered extensively for various legal centres, and completed internships domestically and abroad.
Confiscation consequences are an often-overlooked aspect of criminal law proceedings. However, it is very important to consider them as they can result in the permanent loss of your property or someone else’s. Orders under the Confiscation Act 1997 (Vic) can affect anyone. Unfortunately, this includes many people who have nothing to do with any criminal proceeding, and can often include partners and family members of people who are charged with criminal offences.
This article concerns the initial order you will receive under the Victorian Confiscation Scheme – a Restraining Order. If you have received a Restraining Order, it is really important that you tell a lawyer about this right away. Strict timelines apply, and failure to act quickly can result in significant penalties ranging from large financial penalties to loss of property such as houses and other assets.
What are Restraining Orders?
A restraining order under the Victorian Confiscation Act is the first step in the state securing property. This is done with a view to the State making a future application to permanently take it away. A Restraining Order will stop you or anyone else from being able to deal with your property.
What do they do?
Restraining Orders stop you from dealing with property so that it is preserved for a future purpose, which could be one of multiple purposes including forfeiture, or to facilitate its sale to compensate victims of crime. This means that if a Restraining Order has been made with respect to your property, you will not be able to do things such as sell it, take out a mortgage on it, or give it away. It also means that your property is held for that future purpose of potentially taking it away.
Restraining Orders can apply to various property, including a house, a car, or any other property you own. They can restrain property in your name, property that you own with other people, property that is otherwise associated with you, or even property that belongs to someone else or your future property that you acquire after the Restraining Order is already made.
What is the law that allows this to happen?
Part 2 of the Confiscation Act 1997 (Vic) (sections 14–31) contains the provisions that allow for and govern the operation of Restraining Orders.
When will it be applied for?
Restraining orders are applied for by police or prosecutors on application to a court. This generally happens when someone is charged with a criminal offence. However, Restraining Orders can be applied for before an accused is charged, or after they are convicted. Sometimes Restraining Orders can be applied for “ex-parte” which means that they can be made without your being given notice of the application. In this situation, the first time you might hear of a Restraining Order is when you are given one that has already been made in your absence. Once the order is made, everyone who the police believe have an interest in the restrained property will be notified.
Can property be excluded from Restraining Orders?
If you are served with a Restraining Order, you or someone else with an interest in the property may be able to get their property interest excluded by making an application to the Court. If your property is being restrained for the purpose of automatic forfeiture, then the Restraining Order stage will be your only opportunity to apply for exclusion before your property is automatically forfeited. If the Restraining Order is made with respect to an offence with which you are charged, you can submit an application for exclusion within time and provide reasons in support of your application once your criminal matter is finalised. This is so that you don’t need to tell anything to the prosecution that may support the prosecution’s case against you.
Valid reasons for applying for exclusion will depend on the purpose for which the Restraining Order was made, whether you have been charged with an offence and the circumstances of your case. However, the kinds of reasons that property interests can be excluded include that the property is not “tainted” by the criminal offending, that restraining that property is not necessary to satisfy the restraining order’s purpose, or that you were not involved or aware of the criminal activity involving your property.
Are there time limits to be careful of?
An application to exclude your interest for a Restraining Order must be made within 30 days. If you were given notice of the application for the restraining order before the restraining order was made, then the 30 days commences from the day when the restraining order was made. If you were not notified of the application for the restraining order, then the 30 days commences from the date that you received notice that the order had been made.
- Strict timeframes apply. If you are served with a restraining order, seek legal advice right away, especially if your property is restrained for the purpose of Automatic Forfeiture.
- Restraining Orders and eventual confiscation consequences that flow from restraining orders can affect people who are not charged with criminal offences, and can result in innocent people losing their property.
- If you think another person has an interest in the property, you should ask your lawyer about their interest too. That person may be able to apply to have their interest excluded from the restraining order and any eventual forfeiture or other order that may follow.
Do I need a lawyer?
If you are served with a Restraining Order, it is strongly recommended that you seek legal advice as soon as you can, especially if important property is involved such as your family home. We offer a free 30-minute initial consultation and can speak with you about your situation including to discuss what assistance you might require in your circumstances. We assist people in understanding these matters and the ways they or those close to them could be affected, how they can make exclusion applications, and ensure that timeframes and requirements are met to help you receive the best outcome available to you in your specific case.
Date Published: 18 May 2022