Div 1Restraining orders

Division 1—Restraining orders 24—Restraining orders (1) A court must, on application by the DPP, make an order (a restraining order) that specified property must not be disposed of or otherwise dealt with by any person (except in the manner and circumstances, if any, specified in the order) if satisfied that— (a) a person has been convicted of, or has been charged with, a serious offence, or it is proposed that the person be charged with a serious offence; or (b) a person is suspected on reasonable grounds of having committed a serious offence; or (c) there are reasonable grounds to suspect that the property is the proceeds of, or is an instrument of, a serious offence (whether or not the identity of the person who committed the offence is known); or (d) there are reasonable grounds to suspect that a person has committed a serious offence and has derived literary proceeds in relation to the offence. (2) An application for an order under this section must specify the property to which the application relates. (3) The DPP may submit evidence in support of the application in the form of an affidavit. (4) Subject to subsections (5) and (5a) and Division 3, the court must specify in the restraining order all property specified in the application for the order. (5) The court may only specify property in a restraining order made under subsection (1)(a),(b) or (d) if satisfied that there are reasonable grounds to suspect that the property is— (a) in the case of a restraining order made under subsection (1)(a) or (b)— (i) property of the suspect; or (ii) property of another person (whether or not that other person's identity is known) that— (A) is subject to the effective control of the suspect; or (B) is proceeds of, or is an instrument of, the serious offence; or (b) in the case of a restraining order made under subsection (1)(d)— (i) property of the suspect; or (ii) property of another person (whether or not that other person's identity is known) that is subject to the effective control of the suspect. (5a) The court may not specify property in a restraining order that is protected property of a person unless subsection (1)(c) applies to the property. (6) The court must make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with. (7) The court may specify that a restraining order covers property that is acquired by the suspect after the court makes the order. (8) A restraining order may be made subject to conditions. 25—Notice of application (1) Subject to subsection (4), the DPP must— (a) give written notice of an application for a restraining order covering property to— (i) the owner of the property (if the owner is known); and (ii) any other person the DPP reasonably believes may have an interest in the property; and (b) include with the notice a copy of the application and— (i) in the case of the owner—any affidavit supporting the application; or (ii) in any other case—a notice that the person may request the DPP give the person a copy of any affidavit supporting the application. (2) The DPP must comply with a request referred to in subsection (1)(b)(ii) as soon as practicable. (3) Subject to subsection (4), a court must not hear an application unless it is satisfied that the owner of the property to which the application relates has received reasonable notice of the application. (4) A court may, if the DPP requests, consider the application without notice having been given under subsection (1). (5) A court may, at any time before finally determining the application— (6) A person who claims an interest in property may appear and adduce evidence at the hearing of the application. (7) A witness who is giving evidence relating to an application for a restraining order is not required to answer a question or produce a document if the court is satisfied that the answer or document may prejudice the investigation of, or the prosecution of a person for, an offence. 26—Refusal to make an order for failure to give undertaking (1) A court may refuse to make a restraining order if the Crown refuses or fails to give the court an appropriate undertaking with respect to the payment of damages or costs, or both, for the making and operation of the order. (2) The DPP may give such an undertaking on behalf of the Crown. 27—Order allowing expenses to be paid out of restrained property (1) A court that has made a restraining order may (when the restraining order is made or at a later time) order that one or more of the following may be met out of property, or a specified part of property, covered by the restraining order: (a) the reasonable living expenses of the person whose property is restrained; (b) the reasonable living expenses of any of the dependants of that person; (c) the reasonable business expenses of that person; (d) a specified debt incurred in good faith by that person. (2) The court may only make an order under subsection (1) if— (a) the person whose property is restrained has applied for the order; and (b) the person has notified the DPP, in writing, of the application and the grounds for the application; and (c) the person has disclosed all of his or her interests in property, and his or her liabilities, in a statement on oath that has been filed in the court; and (d) 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— (i) proceedings under this Act; or (ii) proceedings for an offence against a law of the Commonwealth, a State or a Territory; and (e) the court is satisfied that the person cannot meet the expense or debt out of property that is not covered by— (i) a restraining order; or (ii) a recognised Australian restraining order; or (iii) a foreign restraining order that is registered under the Mutual Assistance Act. (3) Property that is covered by— (a) a restraining order; or (b) a recognised Australian restraining order; or (c) a foreign restraining order that is registered under the Mutual Assistance Act, is taken, for the purposes of subsection (2)(e), not to be covered by the order if it would not be reasonably practicable for the Administrator to take custody and control of the property. 28—Excluding property from or revoking restraining orders in certain cases when expenses are not allowed (a) because of the operation of section 27(3), property that is covered by a restraining order is taken for the purposes of section 27(2)(e) not to be covered by the order; and (b) as a result, and for no other reason, the court refuses an application to make an order under section 27(1), the court may— (c) exclude the property from the restraining order; or (d) if the property is the only property covered by the restraining order—revoke the restraining order. (2) The court must not exclude the property or revoke the order unless satisfied that the property is needed to meet one or more of the following: (a) the reasonable living expenses of the person whose property is restrained; (b) the reasonable living expenses of any of the dependants of that person; (c) the reasonable business expenses of that person; (d) a specified debt incurred in good faith by that person. (3) If the court excludes the property from, or revokes, the restraining order, the DPP must give written notice of the exclusion or revocation to— (a) the owner of the property (if the owner is known); and (b) any other person the DPP reasonably believes may have an interest in the property, however, the DPP need not give notice to the applicant for the order under section 27(1).