Restraining orders in Victoria are governed under the Confiscation Act 1997 (Vic) (‘the Act’). In this blog, we will help you understand what these orders are and the purposes for which they are made. We will also break down unexplained wealth restraining orders, as one of the most common types of restraining orders.
What is a Restraining Order?
A restraining order is an order that no property or interest in that property is to be disposed of, or otherwise dealt with, except in the manner or circumstances specified in the order (pursuant to section 14 of the Act). A restraining order can be made over any property, including your house, bank accounts, cryptocurrency and vehicles.
Section 15 of the Act states that the purpose of obtaining a restraining order is to preserve the property, or an interest in that property, so that it will be available for forfeiture, to satisfy a pecuniary penalty order or to satisfy any orders for restitution or compensation under the Sentencing Act 1991. If a Court makes a restraining order, it must state the purpose for which the property is restrained.
There are different types of restraining orders, including:
- Unexplained wealth restraining orders;
- Civil forfeiture restraining orders;
- Serious drug offence restraining orders; and
- Freezing orders.
What is an Unexplained Wealth Restraining Order?
Unexplained wealth generally means there is a suspicion that the person’s interest in the property was acquired through unlawful means. Pursuant to section 40I of the Act, an explained wealth restraining order can be granted if the Court is satisfied that:
1. The party seeking the order suspects that:
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- The person has engaged in serious criminal activity; and
- The person has an interest in the property sought to be restrained;
- That the property is located in Victoria or, in the case of property located outside Victoria, that the serious criminal activity occurred in Victoria; and
- The total value of the property is $50,000 or more; and
2. There are reasonable grounds for the suspicion.
The Court may be satisfied that such a suspicion is reasonable, regardless of whether you, or any other person, have been charged with, tried for, acquitted of, or convicted of the offence suspected of constituting the criminal activity. We often see people who are in no way affiliated with criminal activity who are served with these orders. For instance, a spouse or family member of somebody who has been charged with, or convicted of, a criminal offence may find that their property has been restrained under one of these orders, if they co-own property or share an equitable interest in the property.
Why Wasn’t I Told that an Unexplained Wealth Restraining Order Would be Made Over my Property?
If a restraining order is made over your property, it is unlikely that you will be given any warning. The Director of Public Prosecutions can make an application for a restraining order on an ‘ex parte’ basis under section 40F of the Act. This means that you will not be put on notice of the application and the Court can make a restraining order in your absence. This is to avoid people dispensing with their property (for example, by selling the property) before the purpose for seeking the restraining order can be fulfilled.
If you have been served with a restraining order, you should immediately contact our firm for independent advice. It is crucial that you understand your options as soon as possible, as strict time limits apply.
What Do I Do if I Have Been Served with an Unexplained Wealth Restraining Order?
If you have been served with an unexplained wealth restraining order, you should consider whether you can make an application under section 40R of the Act to exclude your interest in the property from the operation of the restraining order.
The burden and standard of proof is different in these applications. Unlike in criminal matters, it will be on you to satisfy the Court, on the balance of probabilities, that your interest in the property was lawfully acquired (see section 40S(2) of the Act). In considering whether the property was lawfully acquired, the Court will have regard to various and complex considerations under section 40G of the Act. It is important to seek legal advice as to whether any of these considerations are relevant to you.
You should urgently seek advice as to whether or not you should file an exclusion application. You have 90 days from the date that you were served with the restraining order to make the application. There are specific requirements which need to be fulfilled when filing the application and it is important that you seek legal advice, to ensure you comply with these requirements.
If the time period expires, you will need to seek permission from the Court to file your application out of time – provided that the Court grants this prior to the property being forfeited. There are serious consequences to missing the deadline. Pursuant to section 40ZA of the Act, your property will be forfeited to the state on the expiry of six months after the unexplained wealth restraining order has been made, unless you file an exclusion application.
Galbally Parker Lawyers are one of the few criminal law firms who specialise in confiscation and restraining order matters under the Confiscation Act 1997. If you need advice, call (03) 9670 8771 immediately.
Information accurate as of July 2024. This information may change at any time and so it is always important to get tailored and up-to-date legal advice.
