Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (3 of 2010)
Schedule 1 Unexplained wealth
Part 1 Main amendments
Proceeds of Crime Act 2002
13 At the end of Chapter 2
Add:
Part 2-6 - Unexplained wealth orders
179A Simplified outline of this Part
This Part provides for the making of certain orders relating to unexplained wealth.
A preliminary unexplained wealth order requires a person to attend court for the purpose of enabling the court to decide whether to make an unexplained wealth order against the person.
An unexplained wealth order is an order requiring the person to pay an amount equal to so much of the person's total wealth as the person cannot satisfy the court is not derived from certain offences.
Division 1 - Making unexplained wealth orders
179B Making an order requiring a person to appear
(1) A court with *proceeds jurisdiction may make an order (a preliminary unexplained wealth order ) requiring a person to appear before the court for the purpose of enabling the court to decide whether or not to make an *unexplained wealth order in relation to the person if:
(a) the *DPP applies for an unexplained wealth order in relation to the person; and
(b) the court is satisfied that an *authorised officer has reasonable grounds to suspect that the person's *total wealth exceeds the value of the person's *wealth that was *lawfully acquired; and
(c) any affidavit requirements in subsection (2) for the application have been met.
Affidavit requirements
(2) An application for an *unexplained wealth order in relation to a person must be supported by an affidavit of an *authorised officer stating:
(a) the identity of the person; and
(b) that the authorised officer suspects that the person's *total wealth exceeds the value of the person's *wealth that was *lawfully acquired; and
(c) the following:
(i) the property the authorised officer knows or reasonably suspects was lawfully acquired by the person;
(ii) the property the authorised officer knows or reasonably suspects is owned by the person or is under the *effective control of the person.
The affidavit must include the grounds on which the authorised officer holds the suspicions referred to in paragraphs (b) and (c).
(3) The court must make the order under subsection (1) without notice having been given to any person if the *DPP requests the court to do so.
179C Application to revoke a preliminary unexplained wealth order
(1) If a court makes a *preliminary unexplained wealth order requiring a person to appear before the court, the person may apply to the court to revoke the order.
(2) The application must be made:
(a) within 28 days after the person is notified of the *preliminary unexplained wealth order; or
(b) if the person applies to the court, within that period of 28 days, for an extension of the time for applying for revocation - within such longer period, not exceeding 3 months, as the court allows.
(4) However, the *preliminary unexplained wealth order remains in force until the court revokes the order.
(5) The court may revoke the *preliminary unexplained wealth order on application under subsection (1) if satisfied that:
(a) there are no grounds on which to make the order at the time of considering the application to revoke the order; or
(b) it is in the public interest to do so; or
(c) it is otherwise in the interests of justice to do so.
179CA Notice and procedure on application to revoke preliminary unexplained wealth order
(1) This section applies if a person applies under section 179C for revocation of a *preliminary unexplained wealth order.
(2) The applicant may appear and adduce material at the hearing of the application.
(3) The applicant must give the *DPP:
(a) written notice of the application; and
(b) a copy of any affidavit supporting the application.
(4) The *DPP may appear and adduce additional material at the hearing of the application.
(5) The *DPP must give the applicant a copy of any affidavit it proposes to rely on to contest the application.
(6) The notice and copies of affidavits must be given under subsections (3) and (5) within a reasonable time before the hearing of the application.
179D Notice of revocation of a preliminary unexplained wealth order
If a *preliminary unexplained wealth order is revoked under section 179C, the *DPP must give written notice of the revocation to the applicant for the revocation.
179E Making an unexplained wealth order
(1) A court with *proceeds jurisdiction may make an order (an unexplained wealth order) requiring a person to pay an amount to the Commonwealth if:
(a) the court has made a *preliminary unexplained wealth order in relation to the person; and
(b) the court is not satisfied that the whole or any part of the person's *wealth was not derived from one or more of the following:
(i) an offence against a law of the Commonwealth;
(ii) a *foreign indictable offence;
(iii) a *State offence that has a federal aspect.
(2) The court must specify in the order that the person is liable to pay to the Commonwealth an amount (the person's unexplained wealth amount ) equal to the amount that, in the opinion of the court, is the difference between:
(a) the person's *total wealth; and
(b) the sum of the values of the property that the court is satisfied was not derived from one or more of the following:
(i) an offence against a law of the Commonwealth;
(ii) a *foreign indictable offence;
(iii) a *State offence that has a federal aspect;
reduced by any amount deducted under section 179J (reducing unexplained wealth amounts to take account of forfeiture, pecuniary penalties etc.).
(3) In proceedings under this section, the burden of proving that a person's *wealth is not derived from one or more of the offences referred to in paragraph (1)(b) lies on the person.
(4) To avoid doubt, when considering whether to make an order under subsection (1), the court may have regard to information not included in the application.
(5) To avoid doubt, subsection (3) has effect despite section 317.
(6) Despite subsection (1), the court may refuse to make an order under that subsection if the court is satisfied that it is not in the public interest to make the order.
179EA Refusal to make an order for failure to give undertaking
(1) The court may refuse to make a *preliminary unexplained wealth order or an *unexplained wealth order if the Commonwealth 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 Commonwealth.
179EB Costs
If the court refuses to make a *preliminary unexplained wealth order or an *unexplained wealth order, it may make any order as to costs it considers appropriate, including costs on an indemnity basis.
179F Ancillary orders
(1) A court that makes an *unexplained wealth order, or any other court that could have made the unexplained wealth order, may make orders ancillary to the order, either when the order is made or at a later time.
(2) A court that makes a *preliminary unexplained wealth order, or any other court that could have made the order, may make orders ancillary to the order, either when the order is made or at a later time.
Division 2 - Unexplained wealth amounts
179G Determining unexplained wealth amounts
Meaning of wealth
(1) The property of a person that, taken together, constitutes the wealth of a person for the purposes of this Part is:
(a) property owned by the person at any time;
(b) property that has been under the *effective control of the person at any time;
(c) property that the person has disposed of (whether by sale, gift or otherwise) or consumed at any time;
including property owned, effectively controlled, disposed of or consumed before the commencement of this Part.
Meaning of total wealth
(2) The total wealth of a person is the sum of all of the values of the property that constitutes the person's wealth.
Value of property
(3) The value of any property that has been disposed of or consumed, or that is for any other reason no longer available, is the greater of:
(a) the value of the property at the time it was acquired; and
(b) the value of the property immediately before it was disposed of, consumed or stopped being available.
(4) The value of any other property is the greater of:
(a) the value of the property at the time it was acquired; and
(b) the value of the property on the day that the application for the *unexplained wealth order was made.
179H Effect of property vesting in an insolvency trustee
In assessing the value of property of a person, property is taken to continue to be the *person's property if it vests in any of the following:
(a) in relation to a bankruptcy - the trustee of the estate of the bankrupt;
(b) in relation to a composition or scheme of arrangement under Division 6 of Part IV of the Bankruptcy Act 1966 - the trustee of the composition or scheme of arrangement;
(c) in relation to a personal insolvency agreement under Part X of the Bankruptcy Act 1966 - the trustee of the agreement;
(d) in relation to the estate of a deceased person in respect of which an order has been made under Part XI of the Bankruptcy Act 1966 - the trustee of the estate.
179J Reducing unexplained wealth amounts to take account of forfeiture, pecuniary penalties etc.
In determining the *unexplained wealth amount specified in an *unexplained wealth order in relation to a person, the court must deduct an amount equal to the following:
(a) the value, at the time of making the order, of any property of the person forfeited under:
(i) a *forfeiture order; or
(ii) an *interstate forfeiture order; or
(iii) a *foreign forfeiture order;
(b) the sum of any amounts payable by the person under:
(i) a *pecuniary penalty order; or
(ii) a *literary proceeds order; or
(iii) an order under section 243B of the Customs Act 1901; or
(iv) an *interstate pecuniary penalty order; or
(v) a *foreign pecuniary penalty order.
179K Varying unexplained wealth orders to increase amounts
(1) The court may, on the application of the *DPP, vary an *unexplained wealth order against a person by increasing the *unexplained wealth amount if subsection (2) or (3) applies. The amount of the increase is as specified in subsection (2) or (3).
(2) The *unexplained wealth amount may be increased if:
(a) the value of property of the person forfeited under a *forfeiture order, an *interstate forfeiture order or a *foreign forfeiture order was deducted from the unexplained wealth amount under paragraph 179J(a); and
(b) an appeal against the forfeiture, or against the order, is allowed.
The amount of the increase is equal to the value of the property.
(3) The *unexplained wealth amount may be increased if:
(a) an amount payable under a *pecuniary penalty order, a *literary proceeds order, an order under section 243B of the Customs Act 1901, an *interstate pecuniary penalty order or a *foreign pecuniary penalty order was deducted from the *unexplained wealth amount under paragraph 179J(b); and
(b) an appeal against the amount payable, or against the order, is allowed.
The amount of the increase is equal to the amount that was payable.
(4) The *DPP's application may deal with more than one increase to the same *unexplained wealth amount.
179L Relieving certain dependants from hardship
(1) The court making an *unexplained wealth order in relation to a person must make another order directing the Commonwealth, once the unexplained wealth order is satisfied, to pay a specified amount to a *dependant of the person if the court is satisfied that:
(a) the unexplained wealth order would cause hardship to the dependant; and
(b) the specified amount would relieve that hardship; and
(c) if the dependant is aged at least 18 years - the dependant had no knowledge of the person's conduct that is the subject of the unexplained wealth order.
(2) The specified amount must not exceed the person's *unexplained wealth amount.
(3) An order under this section may relate to more than one of the person's *dependants.
Division 3 - How unexplained wealth orders are obtained
179M DPP may apply for an unexplained wealth order
The *DPP may apply for an *unexplained wealth order.
179N Notice of application
(1) This section sets out the notice requirements if the *DPP has made an application for an *unexplained wealth order.
(2) If a court with *proceeds jurisdiction makes a *preliminary unexplained wealth order in relation to the person, the *DPP must, within 7 days of the making of the order:
(a) give written notice of the order to the person who would be subject to the *unexplained wealth order if it were made; and
(b) provide to the person a copy of the application for the unexplained wealth order, and the affidavit referred to in subsection 179B(2).
(3) The *DPP must also give a copy of any other affidavit supporting the application to the person who would be subject to the *unexplained wealth order if it were made.
(4) The copies must be given under subsection (3) within a reasonable time before the hearing in relation to whether the order is to be made.
179P Additional application for an unexplained wealth order
(1) The *DPP cannot, unless the court gives leave, apply for an *unexplained wealth order against a person if:
(a) an application has previously been made for an unexplained wealth order in relation to the person; and
(b) the application has been finally determined on the merits.
(2) The court must not give leave unless it is satisfied that:
(a) the *wealth to which the new application relates was identified only after the first application was determined; or
(b) necessary evidence became available only after the first application was determined; or
(c) it is in the interests of justice to give the leave.
179Q Procedure on application and other notice requirements
(1) The person who would be subject to an *unexplained wealth order if it were made may appear and adduce evidence at the hearing in relation to whether the order is to be made.
(2) The person must give the *DPP written notice of any grounds on which he or she proposes to contest the making of the order.
(3) The *DPP may appear and adduce evidence at the hearing in relation to whether an *unexplained wealth order is to be made.
Division 4 - Enforcement of unexplained wealth orders
179R Enforcement of an unexplained wealth order
(1) An amount payable by a person to the Commonwealth under an *unexplained wealth order is a civil debt due by the person to the Commonwealth.
(2) An *unexplained wealth order against a person may be enforced as if it were an order made in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth.
(3) The debt arising from the order is taken to be a judgment debt.
(4) If an *unexplained wealth order is made against a person after the person's death, this section has effect as if the person had died on the day after the order was made.
179S Property subject to a person's effective control
(1) If:
(a) a person is subject to an *unexplained wealth order; and
(b) the *DPP applies to the court for an order under this section; and
(c) the court is satisfied that particular property is subject to the *effective control of the person;
the court may make an order declaring that the whole, or a specified part, of that property is available to satisfy the unexplained wealth order.
(2) The order under subsection (1) may be enforced against the property as if the property were the *person's property.
(3) A *restraining order may be made in respect of the property as if:
(a) the property were the *person's property; and
(b) there were reasonable grounds to suspect that:
(i) the person had committed an offence against a law of the Commonwealth, a *foreign indictable offence or a *State offence that has a federal aspect;
(ii) the whole or any part of the person's wealth was derived from an offence against a law of the Commonwealth, a foreign indictable offence or a State offence that has a federal aspect.
(4) If the *DPP applies for an order under subsection (1) relating to particular property, the DPP must give written notice of the application to:
(a) the person who is subject to the *unexplained wealth order; and
(b) any person whom the DPP has reason to believe may have an *interest in the property.
(5) The person who is subject to the *unexplained wealth order, and any person who claims an *interest in the property, may appear and adduce evidence at the hearing of the application.
179SA Legal expenses
(1) If the court considers that it is appropriate to do so, it may order that the whole, or a specified part, of specified property covered by an order under subsection 179S(1) is not available to satisfy the *unexplained wealth order and may instead be disposed of or otherwise dealt with for the purposes of meeting a person's reasonable legal expenses arising from an application under this Act.
(2) The court may require that a costs assessor certify that legal expenses have been properly incurred before permitting the payment of expenses from the disposal of any property covered by an order under subsection (1) and may make any further or ancillary orders it considers appropriate.
179T Amounts exceeding the court's jurisdiction
(1) If:
(a) a court makes an *unexplained wealth order of a particular amount; and
(b) the court does not have jurisdiction with respect to the recovery of debts of an amount equal to that amount;
the registrar of the court must issue a certificate containing the particulars specified in the regulations.
(2) The certificate may be registered, in accordance with the regulations, in a court having jurisdiction with respect to the recovery of debts of an amount equal to the amount of the relevant order.
(3) Upon registration in a court, the certificate is enforceable in all respects as a final judgment of the court in favour of the Commonwealth.
Division 5 - Oversight
179U Parliamentary supervision
(1) The operation of this Part and section 20A is subject to the oversight of the Parliamentary Joint Committee on the Australian Crime Commission (the Committee ).
(2) The Committee may require the Australian Crime Commission, the Australian Federal Police, the *DPP or any other federal agency or authority that is the recipient of any material disclosed as the result of the operation of this Part to appear before it from time to time to give evidence.