Commonwealth Consolidated Acts Commonwealth Consolidated Acts (1)
Where the offence concerned is a serious offence, the court shall,
subject to subsections (3), (4), (7A) and (10), make a restraining order
against the property.
(2)
Where the offence concerned is an ordinary indictable offence the court
shall, subject to subsections (3), (4), (5), (6), (7) and (10), make a
restraining order against the property unless the court is satisfied that it
is not in the public interest to make such an order.
(3)
If the defendant has not been convicted of the offence concerned, the
court shall not make a restraining order unless:
(a) the application for the order is supported by an affidavit of a
police officer stating that the officer believes that the defendant committed
the offence; and
(b) the court is satisfied, having regard to the matters contained in
the affidavit, that there are reasonable grounds for holding that belief.
(4)
Where the application is made in reliance on the proposed charging of
the defendant with the offence concerned, the court shall not make a
restraining order unless it is satisfied that the defendant will be charged
with the offence or a related offence within 48 hours.
(5)
Where:
(a) the offence concerned is an ordinary indictable offence; and
(b) the application seeks a restraining order against specified
property of the defendant;
the court shall not make a restraining order
against the property unless:
(c) the application is supported by an affidavit of a police officer
stating that the officer believes that:
(i) the property is tainted property in relation to the offence; or
(ii) the defendant derived a benefit, directly or indirectly, from the
commission of the offence; and
(d) the court is satisfied, having regard to the matters contained in
the affidavit, that there are reasonable grounds for holding that belief.
(6)
Where:
(a) the offence is an ordinary indictable offence; and
(b) the application seeks a restraining order against:
(i) all the property of the defendant;
(ii) all the property of the defendant other than specified property;
or
(iii) specified property of the defendant and all other property of the
defendant;
the court shall not make a restraining order against the property
unless:
(c) the application is supported by an affidavit of a police officer
stating that the officer believes that the defendant derived a benefit,
directly or indirectly, from the commission of the offence; and
(d) the court is satisfied, having regard to the matters contained in
the affidavit, that there are reasonable grounds for holding that belief.
(7)
Where the application seeks a restraining order against specified
property of a person other than the defendant and the offence concerned is an
ordinary indictable offence, the court shall not make a restraining order
against the property unless:
(a) the application is supported by an affidavit of a police officer
stating that:
(i) the officer believes that the property is tainted property in
relation to the offence; or
(ii) the officer believes that:
(A) the property is subject to the effective control of the defendant;
and
(B) the defendant derived a benefit, directly or indirectly, from the
commission of the offence; and
(b) the court is satisfied, having regard to the matters contained in
the affidavit, that there are reasonable grounds for holding that belief.
(7A) Where the
application seeks a restraining order against specified property of a person
other than the defendant and the offence concerned is a serious offence, the
court shall not make a restraining order against the property unless:
(a) the application is supported by an affidavit of a police officer
stating that:
(i) the officer believes that the property is tainted property in
relation to the offence; or
(ii) the officer believes that the property is subject to the effective
control of the defendant; and
(b) the court is satisfied, having regard to the matters contained in
the affidavit, that there are reasonable grounds for holding that belief.
(9)
The court may make a restraining order in respect of property whether
or not there is any risk of the property being disposed of, or otherwise dealt
with, in such manner as would defeat the operation of this Act.
(10) 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.
(11) For
the purposes of an application under section 43, the DPP may, on behalf
of the Commonwealth, give to the court such undertakings with respect to the
payment of damages or costs, or both, as are required by the court.
(12) An
affidavit made by a police officer for the purposes of this section that
states that the officer believes a particular matter shall set out the grounds
on which the officer holds that belief.