38Payment of certain legal expenses from restrained

38 Payment of certain legal 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 a person’s legal expenses in defending a criminal charge to be met out of the restrained property of the person, or a stated part of the property. (2) However, the court must not allow the legal expenses to be met out of restrained property unless— (a) the person applies for an order for the legal expenses to be met out of restrained property; and (b) the application is supported by an affidavit of the person setting out all of the person’s interests in property, including any property of the person outside Australia, and the person’s liabilities; and (c) the court is satisfied that— (i) the affidavit is a true statement of the person’s interests in property and the person’s liabilities; and (ii) the person has taken all reasonable steps to bring any property outside Australia within the jurisdiction of the court; and (iii) the legal expenses cannot be met out of property of the person not subject to a restraining order; and (iv) any property to be released from restraint for the expenses does not have evidentiary value in any criminal proceeding; and (d) if the restrained property includes tainted property—the court is (i) the tainted property is not required to meet the legal 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) For subsection (2) (c) (iv), the court must assume the property does not have evidentiary value unless the contrary is proved. (4) If the court makes or varies a restraining order that allows the legal expenses to be met out of restrained property, the court must include in the order conditions ensuring that— (a) restrained property is used only to meet legal fees, disbursements and out-of-pocket expenses incurred by the person in defending the criminal charge; and (b) all legal fees, disbursements and out-of-pocket expenses are properly and reasonably incurred by the person; and (c) all legal fees are calculated in accordance with the scale of costs for criminal matters determined by the legal aid commission in accordance with the Legal Aid Act 1977, section 31C.