What the law says
Section 47 of the Criminal Proceeds Confiscations Act Queensland states:
- The prescribed respondent under the restraining order may apply to the Supreme Court to amend the order to exclude particular property of the prescribed respondent from the order.
- The application must be made before the State applies for a forfeiture order to be made.
- The prescribed respondent 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.
- The State must be a party to the application.
Section 48 of the Criminal Proceeds Confiscations Act Queensland states:
- The Supreme Court may exclude the prescribed respondent’s property from the order if-
- (a) it is satisfied it is more probable than not that the property to which the application relates is not illegally acquired property; and
- (b) the property is unlikely to be required to satisfy a proceeds assessment order.
- Also, the Supreme Court may exclude the prescribed respondent’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
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 security to meet any liability that is imposed under the Act, at a later date (i.e. a Proceeds Assessment Order).
Which court will hear the matter
The application will be heard in the Supreme Court.
In order for you to be successful in an application at Court, you must show the following:
- Your are the prescribed respondent in the Restraining Order (i.e. the order was made against you); AND
- You made an application to exclude particular property restrained by that Restraining Order; AND
- The application was made prior the State applying for a forfeiture order; AND
- The State is a party to that application; AND
- 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
- 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 Respondent – Lawyer / Solicitor Article
In order to be successful, you will need to show a legitimate basis for your application known as a ground for the application. Possible grounds for this application include:
- That the property came from legitimate sources and is not likely to be required to satisfy any later proceeds assessment order.
- 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..
- The order is not in the public interest.