Criminal Proceeds Confiscation Act – Application To Exclude Property By Owner-Restraining Order

What the law says

Section 49 of the Criminal Proceeds Confiscations Act Queensland states:

1. If the Supreme Court makes a restraining order, a person other than the prescribed respondent (the applicant) whose property is restrained under the order may apply to the court to amend the order to exclude the applicant’s property from the order.
2. The applicant must give notice of the making of the application and the grounds for the application to the State and anyone else who has an interest in the property.
3. The State must be a party to the application.

Section 50 of the Criminal Proceeds Confiscations Act Queensland states:

1. The Supreme Court may exclude the applicant’s property from the order if it is satisfied the applicant acquired the property-
   • (a) in good faith and for sufficient consideration; and
   • (b) without knowing, and in circumstances not likely to arouse a reasonable suspicion, that the property was illegally acquired property.
2. The Supreme Court may make the order only to the extent to which the interest in the property concerned was not, when it first became illegally acquired property, acquired using the proceeds of an illegal activity.
3. In addition, the Supreme Court may exclude the applicant’s property from the order if it is satisfied it is in the public interest to amend the order in the particular circumstances.

Note that the law in respect of such applications is set to change later this year.  The effect will be to require the applicant to give the State written notice of the application in which the applicant outlines the grounds and facts relied upon fully. Keep an eye on this page for updates on when this legislation will come into effect.

What the police must prove

N/A

Maximum penalty

The Court may order the all or part of the property requested be excluded, or it may refuse the application.

If the application is successful, the restraining order will be amended to exclude the particular property from the order and you and other persons will be authorised to deal with the excluded property as you see fit from that point onwards.

If you are unsuccessful, the order will remain in place and it you will have to continue to abide by that order.

Note the Court may impose a condition that you provide certain undertakings in respect of your property.

Which court will hear the matter

The application will be heard in the Supreme Court.

Possible defences

In order for you to be successful in an application at Court, you must show the following:

That:

1. Your are a person other than the prescribed respondent, whom has had your property restrained by the Restraining Order made against the prescribed respondent; AND
2. You made an application to exclude particular property restrained by that Restraining Order; AND
3. The State is a party to that application; AND
4. You gave notice to the State and other interested persons (i.e. others with property restrained under the order) of:
   • (a) the application; AND
   • (b) the grounds for that application; AND
5. A ground to exclude that property exists.

Note that the State may oppose your application.  If so, the State is obligation to provide you with notice of such, detailing the grounds of its opposition. However, it is not required to give any notice until it has had reasonable opportunity to examine you under an examination order.

Grounds for Application – Criminal Proceeds Confiscations (Prior to Conviction) Law – Restraining Order over Property – Application to Exclude Property by Property Owner – Lawyer / Solicitor Article

In order to be successful, you will need to show a legitimate basis for your application known as a ground the application. Possible grounds for this application include:

1. That the particular property came from legitimate sources and is not likely to be required to satisfy any later proceeds assessment order.
2. The property was acquired prior to or after the relevant 6 year period and is not likely to be required to satisfy any later proceeds assessment order.
3. The order is not in the public interest.