New South Wales Consolidated Acts

CRIMINAL ASSETS RECOVERY ACT 1990 - SECT 10

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 Commission may apply to the Supreme 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).

(2AA) The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of specified interests, or a specified class of interests, in property that are held in a false name.

(2A) 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.

(3) The Supreme Court must make the order applied for under subsection (2) 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.

(3A) The Supreme Court must make the order applied for under subsection (2AA) if:

(a) the application is supported by an affidavit of an authorised officer stating that the authorised officer suspects that the interest is fraudulently acquired property that is illegally acquired property and stating the grounds on which that suspicion is based, and

(b) the Court considers that having regard to the matters contained in any such affidavit there are reasonable grounds for any such suspicion.

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

(5) 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),

(b) subject to section 16A, 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.

(6) The Supreme Court may refuse to make a restraining order if the State 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.

(7) For the purposes of an application for a restraining order, the Commission may, on behalf of the State, give to the Supreme Court such undertakings with respect to the payment of damages or costs, or both, as are required by the Court.

(8) 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 Supreme 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 Supreme Court, the application of the interest in satisfaction or partial satisfaction of that debt.

(9) After the first 2 working days 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 the Supreme 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 the Supreme Court, or

(d) it is the subject of an order of the Supreme Court under section 20 (Effect on restraining order of refusal to make confiscation order).