37Payment of living and business expenses from restrained

37 Payment of living and business expenses from restrained (1) A relevant court may, in a restraining order or an order under section 39 (Additional orders about restraining orders and restrained property) varying a restraining order, allow any of the following expenses to be met out of the restrained property of a person, or a stated part of the property: (a) the living and business expenses of the person (other than the person’s legal expenses in defending a criminal charge); (b) the living expenses of a dependant of the person. Note 1 For legal expenses in defending a criminal charge, see s 38. Note 2 For the meaning of dependant, see dict. (2) However, the court must not allow expenses to be met out of restrained property unless— (a) the person satisfies the court that— (i) the expenses are reasonable; and (ii) the expenses are necessary to avoid undue hardship to the person or the person’s dependants; and (iii) the expenses cannot be met out of property of the person not subject to a restraining order; and (b) the court is satisfied that any property to be released from restraint for the expenses does not have evidentiary value in any criminal proceeding; and (c) if the restrained property includes tainted property—the court is (i) the tainted property is not required to meet the expenses; or (ii) if the tainted property is required to meet the expenses—it is just and equitable for the tainted property to meet the expenses. (3) When deciding whether expenses are reasonable, or necessary to avoid undue hardship, the court must take into account that— (a) a person should be able to— (i) satisfy the person’s essential physical and psychological needs; and (ii) have a minimum standard of living that is neither meagre nor luxurious; and (iii) participate in the life of the person’s community; and (iv) have nutritious food, access to transport or personal transportation, appropriate clothing for the place where the person lives, furniture and essential appliances; and (v) have equipment to participate in ordinary leisure activities; and (b) the purpose of allowing living and business expenses is not to avoid every hardship but only undue hardship to the person or the person’s dependants. (4) When determining undue hardship, the court must as far as practicable having regard to the minimum standard of living mentioned in subsection (3) (a) (ii), not take into account hardship arising from the loss of a previous standard of living to the extent that the previous standard of living was likely to have been the result of the commission of an offence, a material advantage derived from an offence or unexplained wealth. (5) For subsection (2) (b), the court must assume the property does not have evidentiary value unless the contrary is proved. (6) A regulation may— (a) prescribe matters to which the court may, must or must not have regard for subsection (2) (a) (i) or (ii); and (b) prescribe, or make provision in relation to, the maximum amount of living or business expenses of a person that may be allowed (for a period or otherwise). (7) A regulation made for this section may apply, adopt or incorporate (with or without change) a provision of a law of the Commonwealth or a State, or an instrument, as in force from time to time. Note 1 The text of an applied, adopted or incorporated law or instrument, whether applied as in force from time to time or at a particular time, is taken to be a notifiable instrument if the operation of the Legislation Act, s 47 (5) or (6) is not disapplied (see s 47 (7)). Note 2 A notifiable instrument must be notified under the Legislation Act.