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Criminal Assets Recovery Bill 2001

Part 2—Restraining Orders

10  Restraining orders

             (1)  A restraining order is an order that no person is to dispose of or attempt to dispose of, or to otherwise deal with or attempt to otherwise deal with, an interest in property to which the order applies except in such manner or in such circumstances (if any) as are specified in the order.

             (2)  The DPP may apply to a court, ex parte, for a restraining order in respect of:

                     (a)  specified interests, a specified class of interests or all the interests, in property of a person suspected of having engaged in a serious crime related activity or serious crime related activities, including interests acquired after the making of the order and before the making of an assets forfeiture order affecting the interests that are subject to the restraining order, or

                     (b)  specified interests, or a specified class of interests, in property that are interests of any other person, or

                     (c)  interests referred to in both paragraph (a) and paragraph (b).

             (3)  A restraining order does not apply to an interest acquired after the order is made unless the order expressly provides that it does so apply.

             (4)  The court to which an application is made must make the order applied for if the application is supported by an affidavit of an authorised officer stating that:

                     (a)  in the case of an application in respect of an interest referred to in subsection (2) (a)—the authorised officer suspects that the person has engaged in a serious crime related activity or serious crime related activities and stating the grounds on which that suspicion is based, and

                     (b)  in the case of an application in respect of any other interest—the authorised officer suspects that the interest is serious crime derived property because of a serious crime related activity or serious crime related activities of a person and stating the grounds on which that suspicion is based,

                   and the court considers that having regard to the matters contained in any such affidavit there are reasonable grounds for any such suspicion.

             (5)  When the court makes a restraining order, the court may, if it considers that the circumstances so require, order the Official Trustee to take control of some or all of the interests in property that are interests to which the restraining order relates.

             (6)  A restraining order may, at the time it is made or at a later time, make provision for meeting out of the property, or a specified part of the property, to which the order applies all or any of the following:

                     (a)  the reasonable living expenses of any person whose interests in property are subject to the restraining order (including the reasonable living expenses of any dependants (if any)),

                     (b)  subject to section 17, the reasonable legal expenses of any person whose interests in property are subject to the restraining order, being expenses incurred in connection with the application for the restraining order or an application for a confiscation order, or incurred in defending a criminal charge.

             (7)  A court may refuse to make a restraining order if the Commonwealth refuses or fails to give to the court such undertakings as the court considers appropriate with respect to the payment of damages or costs, or both, in relation to the making and operation of the order.

             (8)  For the purposes of an application for a restraining order, the DPP may, on behalf of the Commonwealth, give to a court such undertakings with respect to the payment of damages or costs, or both, as are required by the court.

             (9)  If a restraining order is in force in respect of an interest of a person in property, the restraining order does not prevent:

                     (a)  the levying of execution against the property in satisfaction, or partial satisfaction, of the debt arising under a proceeds assessment order in force against the person, or

                     (b)  with the consent of the court, the sale or other disposition of the interest to enable the proceeds to be applied in satisfaction or partial satisfaction of that debt, or

                     (c)  with the consent of the court, the application of the interest in satisfaction or partial satisfaction of that debt.

           (10)  After the first 48 hours of its operation, a restraining order remains in force in respect of an interest in property only while:

                     (a)  there is an application for an assets forfeiture order pending before a court in respect of the interest, or

                     (b)  there is an unsatisfied proceeds assessment order in force against the person whose suspected serious crime related activities formed the basis of the restraining order, or

                     (c)  there is an application for such a proceeds assessment order pending before a court, or

                     (d)  it is the subject of an order of a court under section 22 (Effect on restraining order of refusal to make confiscation order).

11  Notice of restraining order

             (1)  If a court makes a restraining order under this Act, the DPP must give notice of the order and of any variation of the order to the Commissioner of the Australian Federal Police.

 

             (2)  If:

                     (a)  a restraining order is made in respect of an interest in property of a person, and

                     (b)  the person was not notified of the application for the making of the restraining order,

                   notice of the making or variation of the order is to be given by the DPP to the person.

             (3)  A restraining order does not cease to be in force just because proper efforts to give notice of its making have been unsuccessful.

12  Court may make further orders

             (1)  A court may, when it makes a restraining order or at any later time, make any ancillary orders (whether or not affecting a person whose interests in property are subject to the restraining order) that the court considers appropriate and, without limiting the generality of this, the court may make any one or more of the following orders:

                     (a)  an order varying the interests in property to which the restraining order relates,

                     (b)  an order for the examination on oath of:

                              (i)  the owner of an interest in property that is subject to the restraining order, or

                             (ii)  another person,

                            before the court, or before an officer of the court prescribed by rules of court, concerning the affairs of the owner, including the nature and location of any property in which the owner has an interest,

                     (c)  an order for the examination on oath of a person who is the spouse or a de facto partner of the owner of an interest in property that is subject to the restraining order, before the Court or before an officer of the court prescribed by the rules of court, concerning the affairs of the person, including the nature and location of any property in which the person or that owner has an interest,

                     (d)  an order with respect to the carrying out of any undertaking with respect to the payment of damages or costs given on behalf of the Commonwealth in connection with the making of the restraining order,

                     (e)  an order directing a person who is or was the owner of an interest in property that is subject to the restraining order or, if the owner is or was a body corporate, a director of the body corporate specified by the court, to furnish to the DPP or Official Trustee, within a period specified in the order, a statement, verified by the oath of the person making the statement, setting out such particulars of the property, or dealings with the property, in which the owner has or had an interest as the court thinks proper,

                      (f)  if the restraining order requires the Official Trustee to take control of an interest in property:

                              (i)  an order regulating the manner in which the Official Trustee may exercise functions under the restraining order, or

                             (ii)  an order determining any question relating to the interest, including any question affecting the liabilities of the owner of the interest or the functions of the Official Trustee, or

                     (g)  an order requiring or authorising the seizure or taking possession of property.

             (2)  An order under subsection (1) may be made on application:

                     (a)  by the DPP, or

                     (b)  by the owner, or

                     (c)  if the restraining order directed the Official Trustee to take control of an interest in property—by the Official Trustee, or

                     (d)  with the leave of the court before which the application is made—by any other person.

             (3)  The applicant for an order under subsection (1) must give notice of the order:

                     (a)  if the applicant is a person referred to in subsection (2) (a), (b) or (c)—to the other persons referred to in those paragraphs, or

                     (b)  if the applicant is a person referred to in subsection (2) (d)—to the persons referred to in subsection (2) (a)-(c).

13  Privilege

             (1)  A person being examined under section 12 is not excused from answering any question, or from producing any document or other thing, on the ground that:

                     (a)  the answer or production might incriminate, or tend to incriminate, the person or make the person liable to a forfeiture or penalty, or

                     (b)  production of the document would be in breach of an obligation (whether imposed by an enactment or otherwise) of the person not to disclose the existence or contents of the document, or

                     (c)  the answer or production would disclose information that is the subject of legal professional privilege.

             (2)  A statement or disclosure made by a person in answer to a question put in the course of an examination under section 12, or any document or other thing obtained as a consequence of the statement or disclosure, is not admissible against the person in any civil or criminal proceedings except proceedings that comprise:

                     (a)  proceedings in respect of the false or misleading nature of a statement or disclosure made under this Act, or

                     (b)  proceedings on an application under this Act, or

                     (c)  proceedings ancillary to an application under this Act, or

                     (d)  proceedings for enforcement of a confiscation order, or

                     (e)  in the case of a document or other thing—civil proceedings for or in respect of a right or liability it confers or imposes.

             (3)  A person directed by an order under section 12 to furnish a statement to the Official Trustee or the DPP is not excused from:

                     (a)  furnishing the statement, or

                     (b)  setting out particulars in the statement,

                   on the ground that the statement or particulars might incriminate, or tend to incriminate, the person or make the person liable to a forfeiture or penalty.

             (4)  If a person furnishes a statement to the Official Trustee or the DPP in accordance with an order made under section 12, the statement is not admissible against the person in any criminal proceedings except proceedings in respect of the false or misleading nature of the statement.

14 Court may order sale

             (1)  If an application is made for an assets forfeiture order, the court to which the application is made may, when the application is made or at a later time, make an order directing the Official Trustee to sell an interest in property that is subject to the application for the assets forfeiture order if:

                     (a)  the property is subject to waste or substantial loss of value, or

                     (b)  in the opinion of the Official Trustee, the cost of controlling the interest would exceed the value of the interest if the assets forfeiture order were made.

             (2)  Notice of an application for an order under this section must be given to the owner of the interest in property to which the application relates.

             (3)  The proceeds of the sale under subsection (1) of an interest in property are subject to the restraining order to which the interest was subject.

15  Recording of restraining order

             (1)  If a restraining order applies to an interest in property of a particular kind and the provisions of any law of the Commonwealth or of a State or Territory, provide for the registration of title to, an interest in or a charge over, property of that kind, the authority responsible for administering those provisions may, on application by the DPP, record in the register kept under those provisions the particulars of the restraining order.

             (2)  If the particulars of a restraining order are so recorded, a person who subsequently deals with or attempts to deal with the property is, for the purposes of section 16, to be taken to have had notice of the restraining order, at the time of the dealing.

             (3)  If a restraining order applies to an interest in land as a result  of an application made by the DPP under subsection (1), the DPP may apply in accordance with any procedure stipulated in the legislation under which the restraining order has been recorded, for a caveat to be lodged under that legislation in relation to the order.

             (4)  If a restraining order recorded under this section ceases to have effect in relation to an interest in property in respect of which it was made, the DPP must:

                            (a)     apply to the relevant authority of the Commonwealth State or Territory in which the order is recorded for cancellation of the recording, and

                            (b)      withdraw any caveat lodged in relation to the order.

16  Contravention of restraining order

             (1)  A person who contravenes a restraining order, or any ancillary order under section 12, by disposing of or attempting to dispose of, or by otherwise dealing with or attempting to otherwise deal with, an interest in property that is an interest subject to the restraining order is guilty of an offence and punishable, on conviction, by a fine equivalent to the value of the interest (as determined by the court in which the person is convicted) by imprisonment for a period not exceeding 2 years, or both, unless it is proved that the person had no notice that the interest was subject to the restraining order and no reason to suspect that it was.

             (2)  Subsection (1) does not prevent a person from being dealt with for a contempt of the court which made the retraining order, but a person may not, for the same contravention of a restraining order, be punished both for a contempt of that court and under subsection (1).

             (3)  If:

                     (a)  a restraining order is made against an interest in property, and

                     (b)  the interest is disposed of, or otherwise dealt with, in contravention of the restraining order, and

                     (c)  the disposition or dealing was either not for sufficient consideration or not in favour of a person who acted in good faith,

                   the DPP may apply to the court that made the restraining order for an order that the disposition or dealing be set aside.

             (4)  It is not a contravention of a restraining order to dispose of or attempt to dispose of, or to otherwise deal with or attempt to otherwise deal with, an interest in property under the authority of this Act.

17  Restrictions on payment of legal expenses from restrained property

             (1)  The following restrictions apply to a restraining order making provision for the payment of any legal expenses of a person:

                     (a)  no provision is to be made except to the extent (if any) that the court which makes the restraining order is satisfied that the person cannot meet the expenses concerned out of the person's unrestrained property,

                     (b)  no provision is to be made in relation to any particular interest in property if the court is satisfied that the interest is illegally acquired property,

                     (c)  no provision is to be made unless a Statement of Affairs disclosing all the person's interests in property and liabilities and verified on oath by the person has been filed with the court,

                     (d)  no provision is to be made unless the court is satisfied that the person has taken all reasonable steps to bring all of the person's interests in property within the jurisdiction of the court,

                     (e)  any such provision must specify the particular interest in property out of which the expenses concerned may be met.

             (2)  A person's unrestrained property is any interest in property of the person:

                     (a)  that is not subject to a restraining order under this Act, or

                     (b)  that the court is satisfied is not within the court's jurisdiction (whether or not it is subject to a restraining order under this Act), or

                     (c)  that the court is satisfied would not be available to satisfy a proceeds assessment order against the person (assuming such an order were to be made against the person).

18  Maximum legal expenses that can be met from restrained property

             (1)  Despite provision in a restraining order for the meeting of legal expenses out of any property to which the order applies, a legal expense is not to be met out of that property to the extent that the amount payable for any legal service concerned exceeds any maximum allowable cost for the service that is fixed under this section.

             (2)  For the purposes of this Act, the regulations may fix maximum allowable costs for legal services provided in connection with an application for a restraining order or confiscation order or the defending of a criminal charge.

             (3)  Regulations under this section can fix costs by applying, adopting or incorporating, with or without modification, the provisions of any Act  of the Commonwealth or of a State or Territory relating to the fixing of costs, for legal services, or any instrument made under an Act or of any other publication, whether of the same or a different kind, as in force on a particular day or as in force for the time being.

             (4)  This section operates only to limit the amount of the legal expenses that are authorised to be met out of property that is subject to a restraining order and does not limit or otherwise affect any entitlement of a legal practitioner to be paid or to recover for a legal service any amount that exceeds any applicable maximum.

19  Order for taxation of legal expenses

             (1)  If a restraining order makes provision for meeting a person's reasonable legal expenses:

                     (a)  the DPP, or

                     (b)  the Official Trustee if the order provides for the Official Trustee to take control of an interest in the property,

                   may apply to the court for an order under this section.

             (2)  The Official Trustee or the DPP must give to the person notice of an application under this section.

             (3)  On an application under this section, the court must order that the expenses be taxed as provided in the order.

             (4)  After an application is made for an order under this section, the Official Trustee need not, except as ordered by the court, take any steps for the purpose of meeting the expenses as provided by the restraining order unless and until:

                     (a)  an order under this section in relation to the expenses is complied with, or

                     (b)  the application, and any appeal arising out of it, are finally determined, or otherwise disposed of, otherwise than by the making of such an order.

20  Protection of Official Trustee

             (1)  A person who hinders or obstructs the Official Trustee in the performance of the Official Trustee's obligations under a restraining order is guilty of an offence.

                   Maximum penalty: 20 penalty units or imprisonment for 6 months, or both.

             (2)  The Official Trustee is not liable for any rates, land tax or other statutory charges imposed by or under a law of the Commonwealth or of a State or Territory on or in respect of an interest in property of which the Official Trustee has been directed by a restraining order to take control, being rates, land tax or other statutory charges that fall due on or after the date of the restraining order, except to the extent, if any, of the rents and profits received by the Official Trustee in respect of that property on or after the date of the restraining order.

             (3)  If the Official Trustee, in accordance with a restraining order, takes control of a business carried on by a person, the Official Trustee is not liable:

                     (a)  for any payment in respect of long service leave for which the person was liable, or

                     (b)  for any payment in respect of long service leave to which a person employed by the Official Trustee in his or her capacity of manager of the business, or the legal personal representative of such a person, becomes entitled after the date of the restraining order, or

                     (c)  to meet, otherwise than out of the income or assets of the business, any liabilities and expenses incurred in controlling the business.

             (4)  In this section:

                   Official Trustee includes the deputies of, officers and employees on the staff of, and agents of, the Official Trustee.

21  Costs etc payable to Official Trustee

             (1)  The regulations may make provision for or in relation to:

                     (a)  the costs, charges and expenses incurred in connection with; and

                     (b)  the Official Trustee’s remuneration in respect of the performance or exercise by official Trustee of functions, duties or powers under this Act.

             (2)  An amount equal to each amount of remuneration that the Official Trustee receives under the regulations shall be paid into the Consolidated Revenue Fund.

22  Effect on restraining order of refusal to make confiscation order

             (1)  If, while a restraining order is in force, a court does not make an assets forfeiture order in respect of interests in property to which the restraining order relates or a proceeds assessment order in respect of any person whose interests in property are affected by the restraining order, a court may:

                     (a)  if it considers it appropriate, make an order in relation to the period for which the restraining order is to remain in force, and

                     (b)  make such other order or orders as it considers appropriate in relation to the operation of the restraining order.

             (2)  An order under subsection (1) may be made to take effect:

                     (a)  forthwith, or

                     (b)  at a specified time, or

                     (c)  on the happening of a specified event.

23  Certificate by Official Trustee

                   If a restraining order is made directing the Official Trustee to take control of an interest in property, a certificate under the hand of the Official Trustee or an officer to whom the function of issuing a certificate has been delegated by the Official Trustee, and sealed with the Official Trustee's seal:

                     (a)  certifying that the restraining order has been made and is in force, and

                     (b)  stating the terms of the restraining order,

                   is to be accepted by all courts, officers and other persons, whether acting under any Act or not, as evidence of the matters so certified and stated and of the Official Trustee's right to act under the restraining order.