Div 3Excluding property from restraining orders

Division 3—Excluding property from restraining orders 34—Court may exclude property from restraining order (1) The court to which an application for a restraining order under section 24(1)(a) or (b) was made may, when the order is made or at a later time, exclude specified property from the order if— (a) an application is made under section 35 or 36; and (i) the property is neither proceeds nor an instrument of unlawful activity; and (ia) — (A) if the suspect has been convicted of the serious offence to which the restraining order relates— • the suspect has not become a prescribed drug offender as a result of the conviction; or • the suspect has become a prescribed drug offender as a result of the conviction, but the property was not owned by or subject to the effective control of the suspect on the conviction day for that offence or is property that should not be subject to the restraining order in accordance with section 24(5a); or (B) if the suspect has not been convicted of the serious offence to which the restraining order relates— • the suspect would not become a prescribed drug offender if convicted of the offence; or • the suspect would become a prescribed drug offender if convicted of the offence, but the property is not owned by or subject to the effective control of the suspect or is property that should not be subject to the restraining order in accordance with section 24(5a); and (ii) the owner's interest in the property was lawfully acquired; and (iii) it would not be contrary to the public interest for the property to be excluded from the order. (2) However— (a) the court must not exclude property from a restraining order unless satisfied that neither a pecuniary penalty order nor a literary proceeds order could be made against— (i) the person who owns the property; or (ii) if the property is not owned by the suspect but is subject to his or her effective control—the suspect; and (b) the court must not exclude property from a restraining order unless satisfied that the property could not be subject to an instrument substitution declaration if the suspect were convicted of the offence. (3) Despite any other provision of this section, if a court has, in determining sentence in respect of a person's conviction of a serious offence, taken into account any forfeiture of property under this Act that might result from conviction for the offence, the property cannot be excluded from a restraining order relating to the offence on application made by the convicted person. 35—Application to exclude property from a restraining order after notice of the application for the order (1) A person whose property would be covered by a restraining order may apply to the court to exclude specified property from the restraining order within 14 days after being notified of the application for the order. (2) The person must give written notice to the DPP of both the application and the grounds on which the exclusion is sought. (3) The DPP— (b) must give the person notice of any grounds on which the DPP proposes to contest the application. 36—Application to exclude property from a restraining order after notice of the order (1) A person may apply to the court to exclude specified property from a restraining order at any time after being notified of the order. (2) However, unless the court gives permission, the person cannot apply if the person— (a) appeared at the hearing of the application for the restraining order; or (b) was notified of the application for the restraining order, but did not appear at the hearing of the application. (3) The court may give the person permission to apply if the court is satisfied that— (a) if subsection (2)(a) applies—the person now has evidence relevant to the person's application that was not available to the person at the time of the hearing; or (b) if subsection (2)(b) applies—the person had a good reason for not appearing; or (c) in any case—there are special grounds for giving the permission. (4) The person must give written notice to the DPP of the application and the grounds on which the exclusion is sought. (5) The DPP— (b) must give the person notice of any grounds on which the DPP proposes to contest the application. 37—Application not to be heard unless DPP has had reasonable opportunity to conduct an examination The court must not hear an application to exclude specified property from the restraining order if— (a) the restraining order is in force; and (b) the DPP has not been given a reasonable opportunity to conduct examinations under this Act. 38—Giving security etc to exclude property from a restraining order A court may exclude specified property from a restraining order that covers property if— (a) in the case of a restraining order that covers the property of the suspect— (i) the suspect applies to the court to exclude the property; and (ii) the suspect gives written notice of the application to the DPP; and (iii) the suspect gives security that is satisfactory to the court to meet any liability that may be imposed on the suspect under this Act; or (b) in the case of a restraining order that covers the property of a person who is not the suspect— (i) the person applies to the court to exclude the property; and (ii) the person gives written notice of the application to the DPP; and (iii) the person gives an undertaking concerning the person's property that is satisfactory to the court.