Document ID: chunk:federal_register_of_legislation:C2018C00169:section:48:p2
Version: federal_register_of_legislation:C2018C00169
Segment Type: section
Provision Reference: s 48 (pt 2/4)
Character Range: 140228–142905

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)