(1) Application for order The Commission may apply to the Supreme Court, ex
parte, for a restraining order in respect of specified interests, a specified
class of interests, or all the interests, in property of any person (including
interests acquired after the making of the order).
(2) 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.
(4) Notice to affected person of application Despite the application for a
restraining order being made ex parte, the Supreme Court may, if it thinks
fit, require the Commission to give notice of the application to a person who
the Court has reason to believe has a sufficient interest in the application.
A person who is required to be notified is entitled to appear and adduce
evidence at the hearing of the application.
(5) Determination of applications
The Supreme Court must make a restraining order if the application for the
order 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 (1)--the authorised officer suspects that--
(i) the person whose
interest is the subject of the application has engaged in a
serious crime related activity or serious crime related activities, or
(ii)
the person whose interest is the subject of the application has acquired
serious crime derived property because of any such activity of the person or
of another person, or
(iv) the person has not disclosed an interest in property in evidence or a
warranty or other representation given or made by the person in proceedings
relating to an application for an assets forfeiture order,
proceeds assessment order or unexplained wealth order, or examination
proceedings under this Act, and the interest to which the application relates
is capable of being the subject of an order under section 31A or 31B because
of that non-disclosure, or
and the Court
considers that, having regard to the matters contained in any such affidavit
and any evidence adduced under subsection (4), there are reasonable grounds
for any such suspicion.
(6) The Supreme Court may grant an application under
this section for a restraining order for interests in property derived from
external serious crime related activity only if the application is supported
by an affidavit of an authorised officer stating that the officer has made due
enquiry and is satisfied that no action has been taken under a law of the
Commonwealth or any place outside this State (including outside Australia)
against any interests in property of the person concerned that are the subject
of the application as a result of the external serious crime related activity.
(7) Undertakings by State as to costs or damages 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 as to the payment of
damages or costs, or both, in relation to the making and operation of the
order.
(8) 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 as to the payment of damages or costs, or both, as the Court
requires.
(9) Urgent applications by telephone or other means of
communication An authorised officer may, on behalf of the Commission, apply
for a restraining order by telephone, radio, facsimile, email or other means
of communication if the application is supported by a statement of the officer
that--
(a) the order is required urgently as there is a risk that funds in a
specified financial institution (being an interest in property in respect of
which the order is sought) may be withdrawn or transferred to a place outside
New South Wales (including outside Australia), and
(b) it is not practicable
for the authorised officer to appear in person.
(10) If it is not possible
for the application to be made directly to the Supreme Court by the applicant,
the application may be transmitted to the Supreme Court by another person on
behalf of the applicant.
