CURRENT TOPICS

Whether under the Criminal Assets Recovery Act or the Proceeds of Crime Act 2002, a restraining order will be seminal to the litigation process. It therefore becomes imperative, that where appropriate, that order be challenged either in whole or in part.

For many years, lawyers and judges alike, never challenged the validity of restraint, however, the broad ranging impact is such that the High Court challenge to the constitutional validity of restraining orders under the Criminal Assets Recovery Act 1990, in International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49, is such that as a starting point consideration be given to challenging restraint, either in whole or in part. It is not remiss that for the most part, forfeiture cannot be effected unless there is a valid restraining order.

The variation of restraining orders for the payment of the legal expenses of an accused person is more often then not a hotly contested application and requires urgent analysis of a persons financial affairs so as to demonstrate not only a requirement to access restrained funds but also to demonstrate that the funds sought to be accessed are not themselves so tainted that a Court would not exercise its discretion to vary restraint so as to pay legal expenses.