Restraining Orders – Criminal Assets Confiscation

A restraining order is defined within section 24 of the Criminal Assets Confiscation Act 2005 to mean an order that specified property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order.

A restraining order does not mean that the property becomes the property of the state of South Australia. It just means that you cannot dispose of the property or deal with it (mortgage or borrow money against, etc.) while ever the restraining order is in place

Section 24 says that the court must make a restraining order if it satisfied of any of the following:

➢  a person has been convicted of, or has been charged with, a serious offence, or it is proposed that the person be charged with a serious offence; or

➢  a person is suspected on reasonable grounds of having committed a serious offence; or

➢  there are reasonable grounds to suspect that the property is the proceeds of, or is an instrument of, a serious offence (whether or not the identity of the person who committed the offence is known); or

➢  there are reasonable grounds to suspect that a person has committed a serious offence and has derived literary proceeds in relation to the offence.

What is a serious offence?

Section 3 of the Criminal Assets Confiscation Act 2005 defines "serious offence" to mean either:

➢  an indictable offence; or

➢  an offence against the following...

  • Section 68(3) of the Criminal Law Consolidation Act 1935; or
  • Section 52, 53, 72 or 74 of the Fisheries Management Act 2007; or
  • Section 99 of the Liquor Licensing Act 1997; or
  • a provision of the Lottery and Gaming Act 1936; or
  • Section 47, 48, 48A, 51 or 60 of the National Parks and Wildlife Act 1972; or
  • Section 28(1)(a) or 41 of the Summary Offences Act 1953; or

➢  A foreign offence declared by the regulations to be within the ambit of this

definition;

When is property proceeds of an offence?

Section 7 of the Criminal Assets Confiscation Act 2005, states that property is "proceeds" of an offence if it is either wholly or partly derived or realised, whether directly or indirectly, from the commission of the offence whether the property is situated within or outside the State.

When is property an instrument of an offence?

Section 7 of the Criminal Assets Confiscation Act 2005, states that property is an "instrument" of an offence if it is either used in or intended to be used in, or in connection with, the commission of an offence whether the property is situated within or outside the State;


Casey Isaacs

About the Author

Casey Isaacs is a specialist in Criminal Assets Confiscation matters and appears in the Magistrates and District Court in Adelaide and each of the circuit courts (Mount Gambia, Berri, Port Pirie, Whyalla, Port Augusta, and Port Lincoln) more than any other lawyer in South Australia. He is a senior criminal lawyer and a Partner at Caldicott Lawyers. He regularly teaches other lawyers about the Criminal Assets Confiscation law and many lawyers refer asset confiscation matters to him. Don’t let his youthful looks deceive you Casey has been specialising in Criminal law and Criminal Assets Confiscation matters for 17 years.

Casey can be contacted on (08) 8120 3778 or after hours on 0412 816 575 or by email at cisaacs@caldicottlawyers.com.au.