What the law says
Section 50A of the Criminal Proceeds Confiscations Act Queensland states:
- A person whose property is the subject of a restraining order and who was not given notice of the application for the restraining order may apply to the Supreme Court to revoke the order.
- The application must be made within 28 days or, with the approval of the court, the further period, of not more than 3 months, after the person is notified of the making of the restraining order.
- The applicant must give to the State written notice of the making of the application and the grounds for the application.
- The restraining order remains in force until the court revokes the order or the order otherwise stops having effect.
- The State may present additional material to the court relating to the application to revoke the restraining order.
- After considering the application, the court may revoke the restraining order if satisfied, on the facts before the court, there would be no basis for making a restraining order in relation to the property.
What the police must prove
If the application is successful, the restraining order will be revoked and thereby you and other persons will be authorised to deal with the 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.
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 property is subject to a Restraining Order; AND
- You were not given notice of the application to make that Restraining Order; AND
- The application was made within:
- (a) 28 days of the Restraining Order being made; OR
- (b) 3 months of the Restraining Order being made with leave of the Court; AND
- You gave written notice to the Police of the application and the grounds for that application.
Grounds for Application – Criminal Proceeds Confiscations (Prior to Conviction) Law – Application to Revoke Restraining Order over Property – Defences – 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:
- The application for the Restraining Order was not made in the approved way.
- The application for the Restraining Order was not accompanied by an Affidavit.
- The Affidavit that accompanied the application for the Restraining Order, did not detail reasonable grounds for the suspicion stated.
- There are in fact no reasonable grounds for the suspicion/s stated in the Affidavit that accompanied the application for the Restraining Order.
- The property came from legitimate sources.
- The property was accumulated prior to or after the relevant 6 year period.
- You were not given reasonable notice of the application and the Court did not provide leave authorising the lack of notice.
- The order is not in the public interest.
- The police have failed to give undertakings requested of the Court in respect of damages and costs.