Revoking a Restraining Order

If a restraining order was made ex-parte, a person may apply to the court to revoke the order.[1] The application must be made within 28 days.[2] This time period can be extended for up to 3 months if the court allows.[3]

The applicant must give written notice to the AFP and AFSA of both the application and grounds[4] on which the revocation is sought.[5]

The restraining order remains on foot until the court revokes the order.[6]

The court has a discretion[7] to revoke the restraining order if it is satisfied that:

• There are no grounds on which to make the order at the time of considering the application to revoke the order; or
• It is otherwise in the interests of justice to do so.

As the relevant threshold for restraining orders is a ‘reasonable suspicion’, revoking a restraining order can prove difficult. As previously mentioned, ‘reasonable suspicion’ is a low bar to meet, and therefore establishing that there were no grounds (in relation to point (a) above) to make the restraining order, is difficult.

The assessment of whether there are grounds or not in relation to the restraining order is an assessment done at the time of the application to revoke the order,[8] not at the time that the restraining order was made.

Point (b) above provides another avenue for the court to revoke the restraining order exclusive of point (a), namely it is in the ‘interests of justice’ to revoke the order.

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[1] S 42(1) Proceeds of Crime Act 2002 (Cth).

[2] S 42(1A)(a) Proceeds of Crime Act 2002 (Cth).

[3] S 42(1A)(b) Proceeds of Crime Act 2002 (Cth).

[4] “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]).

[5] S 42(2) Proceeds of Crime Act 2002 (Cth).

[6] S 42(3) Proceeds of Crime Act 2002 (Cth).

[7] S 42(5) Proceeds of Crime Act 2002 (Cth).

[8] S 42(5)(a) Proceeds of Crime Act 2002 (Cth); Commonwealth Director of Public Prosecutions v Tan [2004] NSWSC 856, [2]; Director of Public Prosecutions (Cth) – Re Section 19 of the Proceeds of Crime Act 2002 Re Funds in a bank account Re Sunshine Worldwide Holdings Ltd and South East Group Ltd [2005] NSWSC 117, [53].

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