Allowance for Expenses

The court has a discretion to allow reasonable living expenses / reasonable business expenses / a specified debt incurred in good faith by that person to be met out of property covered by a restraining order,[1] if inter alia, the court is satisfied that the person cannot meet the expense or debt out of property that is not covered by the restraining order.

The criteria is:[2]

• The person whose property is retrained has applied for the order;
• The person has notified the AFP in writing of the application and the grounds[3] for the application;
• The person has disclosed all of their interests[4] in property, and all of their liabilities in a statement on oath that has been filed in court;
• The court is satisfied that the expense or debt does not, or will not, relate to legal costs that the person has incurred, or will incur, in connection with proceedings under POCA or proceedings for a criminal offence;
• The court is satisfied that the person cannot meet the expense or debt out of property that is not covered by the restraining order.

If property the subject of a restraining order cannot be taken by the Australian Financial Security Authority (AFSA) in a reasonably practicable manner, it is taken not to be covered by the restraining order for the purposes of this section.[5] That is, if there is some property that is covered by the restraining order but AFSA cannot take custody and control of the property in a reasonably practicable manner, the court would need to be satisfied that the person cannot meet the expense or debt out of this property, before being successful in an application for Allowance for expenses. In the event that an Allowance for expenses application is refused due to only this reason, it is open to the court to exclude this said property from the restraining order[6] to meet reasonable living expenses / reasonable business expenses / a specified debt incurred in good faith by that person.

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[1] S 24(1) Proceeds of Crime Act 2002 (Cth).

[2] S 24(2) Proceeds of Crime Act 2002 (Cth).

[3] “grounds” cannot simply restate the statutory regime. ‘The applicant should particularise … not merely recite the statutory formation of the test…’ (Commissioner of the Australian Federal Police v Nguyen [2016] NSWSC 883, [8]).

[4] Broadly defined – see s 338 Proceeds of Crime Act 2002 (Cth).

[5] S 24(3) Proceeds of Crime Act 2002 (Cth).

[6] S 24A(1) Proceeds of Crime Act 2002 (Cth).

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