Commonwealth Consolidated Acts Commonwealth Consolidated Acts (1)
Where a court makes a restraining order, the court may, at the time
when it makes the restraining order or at any later time, make any ancillary
orders that the court considers appropriate and, without limiting the
generality of this, the court may make any one or more of the following
orders:
(a) an order varying the property to which the restraining order
relates;
(b) an order varying any condition to which the restraining order is
subject;
(c) an order for the examination on oath before the court or the
registrar of the court of any person, including:
(i) a person whose property is the subject of the restraining order (in
this section called the owner ); or
(ii) a person who is the defendant within the meaning of
section 43 in relation to the offence to which the restraining order
relates (in this subsection called the defendant );
about the affairs (including the nature and location of any property) of:
(iii) anyone else who is either the owner or the defendant, or both;
and
(iv) if the person to be examined is either the owner or the defendant
or both--that person;
(d) an order with respect to the carrying out of any undertaking with
respect to the payment of damages or costs given by the Commonwealth in
connection with the making of the restraining order;
(da) an order directing:
(i) the owner; or
(ii) if the owner is not the defendant--the defendant; or
(iii) if the owner or the defendant is a body corporate--a director of
the body corporate specified by the court;
to give to:
(iv) where the restraining order is, or includes, an order made under
paragraph 43(2)(b)--the Official Trustee; and
(v) in any other case--the applicant for the ancillary order or such
other person as the court directs;
within a period specified in the ancillary order, a statement sworn on oath
setting out such particulars of the property, or dealings with the property,
of the owner or the defendant, as the case may be, as the court thinks proper;
(e) where the restraining order directed the Official Trustee to take
custody and control of property:
(i) an order regulating the manner in which the Official Trustee may
exercise its powers or perform its duties under the restraining order;
(ii) an order determining any question relating to the property to
which the restraining order relates, including any question relating to:
(A) the liabilities of the owner; or
(B) the exercise of the powers, or the performance of the duties, of
the Official Trustee;
with respect to the property to which the restraining order relates;
(iii) an order directing the owner or another person to do any act or
thing necessary or convenient to be done to enable the Official Trustee to
take custody and control of the property in accordance with the restraining
order.
(2)
An order under subsection (1) may be made on application by:
(a) the DPP;
(b) the owner;
(c) where the restraining order directed the Official Trustee to take
custody and control of property--the Official Trustee; or
(d) with the leave of the court--any other person.
(2A) An
ancillary order made before or after the commencement of this subsection in
relation to a restraining order that is in force on or after that commencement
does not cease to have effect merely because the restraining order, or part of
it, ceases to be in force under paragraph 57(2)(e) or (g).
(3)
Where:
(a) a person (in this subsection called the defendant ) has been
convicted of, or has been charged or is about to be charged with, an offence;
(b) a court, in reliance on the conviction, charging or proposed
charging makes a restraining order against property; and
(c) a person having an interest in the property applies to the court
for a variation of the order to exclude the person's interest from the order;
the court shall grant the application if:
(d) where the applicant is not the defendant and the offence is an
ordinary indictable offence:
(i) if the restraining order was made against the property by virtue of
subparagraph 44(7)(a)(ii)--the court is satisfied that the interest is not
tainted property and that:
(A) a pecuniary penalty order cannot be made against the defendant; or
(B) the applicant's interest in the property is not subject to the
effective control of the defendant; or
(ii) in any other case--the court is satisfied that the interest is not
tainted property;
(e) where the applicant is the defendant and the offence is an ordinary
indictable offence--the court is satisfied that:
(i) the interest is not tainted property; and
(ii) a pecuniary penalty order cannot be made against the defendant;
(f) where the applicant is not the defendant, the restraining order was
not made by virtue of subsection 44(7A) and the offence is a
serious offence--the court is satisfied that:
(i) the applicant was not, in any way, involved in the commission of
the offence; and
(ii) where the applicant acquired the interest at the time of or after
the commission, or alleged commission, of the offence--the applicant acquired
the interest:
(A) for sufficient consideration; and
(B) without knowing, and in circumstances such as not to arouse a
reasonable suspicion, that the property was tainted property;
(fa) where the applicant is not the defendant and the restraining order
was made by virtue of subsection 44(7A)--the court is satisfied that:
(i) the applicant was not, in any way, involved in the commission of
the offence;
(ii) the property is not tainted property in relation to the offence;
and
(iii) the applicant's interest in the property is not subject to the
effective control of the defendant; or
(g) in any case--the court is satisfied that it is in the public
interest to do so having regard to all the circumstances, including:
(i) any financial hardship or other consequence of the interest
remaining subject to the order;
(ii) the seriousness of the offence; and
(iii) the likelihood that the interest will be:
(A) subject to a forfeiture order;
(B) subject to section 30; or
(C) required to satisfy a pecuniary penalty order.
(4)
Where:
(a) a person (in this subsection called the defendant ) has been
convicted of, or has been charged or is about to be charged with, a
serious offence;
(b) a court, in reliance on the conviction, charging or proposed
charging, makes a restraining order against property;
(c) the defendant has an interest in the property;
(d) the defendant applies to the court for a declaration under this
subsection in relation to the interest; and
(e) the court is satisfied that:
(i) the property was not used in, or in connection with, any unlawful
activity and was not derived, directly or indirectly, by any person from any
unlawful activity; and
(ii) the defendant's interest in the property was lawfully acquired;
the court may, by order, declare that the restraining order, to the extent to
which it relates to the property, shall be disregarded for the purposes of
section 30.
(5)
Where a person is examined before a court or the registrar of a court
pursuant to an order under subsection (1), the person is not excused from
answering a question when required to do so by the court or the registrar, as
the case may be, on the ground that the answer to the question might tend to
incriminate the person or make the person liable to forfeiture or a penalty.
(6)
Where a person is examined before a court or the registrar of a court
pursuant to an order under subsection (1), a statement or disclosure made
by the person in answer to a question put in the course of the examination,
and any information, document or thing obtained as a direct or indirect
consequence of the statement or disclosure, is not admissible against the
person in any criminal proceedings except a proceeding for giving false
testimony in the course of the examination.
(6A) A person
whom an order under paragraph (1)(da) directs to give a statement is not
excused from giving the statement, or from setting out particulars in the
statement, on the ground that the statement or particulars, as the case may
be, might tend to incriminate the person or make the person liable to a
forfeiture or penalty.
(6B) Where a
person gives a statement under an order made under paragraph (1)(da),
neither the statement, nor any information, document or thing obtained as a
direct or indirect consequence of the statement, is admissible against the
person in any criminal proceedings except a proceeding in respect of the
falsity of the statement.
(7)
For the purposes of subsection (6) or (6B), proceedings on an
application for a restraining order, a forfeiture order or a pecuniary penalty
order are not criminal proceedings.
(8)
Where the DPP applies to a court for an order under
subsection (1), a witness shall not be required to answer a question or
to produce a document if the court is satisfied that the answering of the
question or the production of the document may prejudice the investigation of,
or the prosecution of a person for, an offence.