Queensland Consolidated Acts

CRIMINAL PROCEEDS CONFISCATION ACT 2002 - SECT 140

140 Supreme Court may exclude other property from restraining order

(1) A person, other than the prescribed respondent (the
"applicant" ), whose property is restrained under a restraining order may apply to the Supreme Court to amend the order to exclude the applicant’s property from the order.

(2) If the restraining order was made in relation to a serious criminal offence, the Supreme Court may exclude the applicant’s property from the order if the court is satisfied—

(a) the property is not tainted property and is not available substitute property; and

(b) the property is not under the prescribed respondent’s effective control; and

(c) the applicant was not in any way involved in the commission of the offence.

(3) If the restraining order was made in relation to an offence that is not a serious criminal offence, the Supreme Court may exclude the applicant’s property from the order if the court is satisfied—

(a) the interest is not tainted property and is not available substitute property; and

(b) either—

(i) the applicant’s property is not under the prescribed respondent’s effective control; or

(ii) a pecuniary penalty order can not be made against the prescribed respondent.

(4) Also, the Supreme Court may exclude the applicant’s property from the restraining order if the court is satisfied—

(a) the applicant was not, in any way, involved in the commission of the offence; and

(b) if the applicant acquired the property at the time of or after the commission, or alleged commission, of the offence, the applicant acquired the property—

(i) in good faith and for sufficient consideration; and

(ii) without knowing, and in circumstances not likely to arouse a reasonable suspicion, that the property was tainted property in relation to the offence.

(5) In addition, the Supreme Court may exclude the applicant’s property from the order if the court is satisfied it is in the public interest to amend the order having regard to all the circumstances, including—

(a) a financial hardship or other result of the property remaining restrained under the order; and

(b) the seriousness of the offence; and

(c) the likelihood that the interest will be—

(i) liable to forfeiture under a forfeiture order; or

(ii) automatically forfeited; or

(iii) required to satisfy a pecuniary penalty order.

(6) The Supreme Court may require the applicant to give the undertakings about the applicant’s property the court considers appropriate.