Victorian Consolidated Legislation

Confiscation Act 1997 - SECT 27

Duration and setting aside of restraining order

27. Duration and setting aside of restraining order



(1) If, at the end of the period of 48 hours after the making of a restraining
order in reliance on the proposed charging of a defendant with a Schedule 1
offence or a Schedule 2 offence, the defendant has not been charged with the
offence or a related offence that is a Schedule 1 offence or a Schedule 2
offence, whether or not in the same Schedule as the original offence, the
order ceases to be in force at the end of that period.



(2) A restraining order made on an application under section 16(2)(a) ceases
to be in force on the expiry of 90 days after it is made unless an application
for a civil forfeiture order in respect of the restrained property is then
pending before the Supreme Court or the County Court.

(3) If, when a restraining order was made in reliance on the charging, or
proposed charging, of a defendant with a Schedule 1 offence or a Schedule 2
offence or in reliance on the conviction of a defendant of such an offence-

   (a)  the charge is withdrawn and the defendant is not charged with a
        related offence that is a Schedule 1 offence or a Schedule 2 offence
        by the time of the withdrawal, whether or not in the same Schedule as
        the original offence, the restraining order ceases to be in force on
        the expiry of 7 days after the charge is withdrawn; or

   (b)  the defendant is acquitted of the charge and the defendant is not
        charged with a related offence that is a Schedule 1 offence or a
        Schedule 2 offence by the time of the acquittal, whether or not in the
        same Schedule as the original offence, the restraining order ceases to
        be in force when the acquittal occurs; or



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   (c)  the conviction of the defendant of the offence is subsequently
        quashed, the restraining order (other than one referred to in
        subsection (2)) ceases to be in force when the appeal period expires
        unless a re-trial has been ordered at the time of the quashing of the
        conviction.

(4) If, while a restraining order in respect of an interest in property is in
force, a court makes a forfeiture order or a civil forfeiture order in respect
of the interest or makes a pecuniary penalty order against the defendant or
makes an order for restitution or compensation under the Sentencing Act 1991,
that court or the Supreme Court or the County Court may-

   (a)  make an order setting aside the restraining order in respect of the
        whole or a specified part of the interest; or

   (b)  make such other order or orders as it considers appropriate in
        relation to the operation of the restraining order.

(5) If a restraining order is made for a purpose referred to in section 15(1)
and, while the order is in force, a court refuses to make an order for that
purpose, that court or the Supreme Court or the County Court may-

   (a)  make an order in relation to the purpose and period for which the
        restraining order is to remain in force; and

   (b)  make such other order or orders as it considers appropriate in
        relation to the operation of the restraining order.





(6) A court may make an order setting aside a restraining order on the
application of a person if the person-

   (a)  gives security satisfactory to the court for the payment of any
        pecuniary penalty that may be imposed on the person under Part 8; or

   (b)  gives undertakings satisfactory to the court concerning the person's
        property.



(7) An order under subsection (4), (5) or (6) may be made so as-

   (a)  to set aside the restraining order wholly or in part; and

   (b)  to take effect-

   (i)  on the making of the first-mentioned order; or

   (ii) at a specified time; or

   (iii) if relevant, on the payment of money or the transfer of any interest
        in property to the Minister; or

   (iv) on the happening of some other specified event- and, when the
        first-mentioned order takes effect, the restraining order ceases to be
        in force to the extent to which it is set aside.

(8) An order under subsection (4), (5) or (6) may be made on the application
of-

   (a)  the applicant for the restraining order; or

   (b)  the defendant; or

   (c)  any person to whose property the restraining order relates or who has
        an interest in that property; or

   (d)  a trustee-if the restraining order directed the trustee to take
        control of property; or

   (e)  any other person who obtains the leave of the court to apply.