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

5   After section 20

Insert:

20A Restraining orders - unexplained wealth

When a restraining order must be made

(1) A court with *proceeds jurisdiction may order that:

(a) property must not be disposed of or otherwise dealt with by any person; or

(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;

if:

(c) the *DPP applies for the order; and

(d) there are reasonable grounds to suspect that a person's *total wealth exceeds the value of the person's *wealth that was *lawfully acquired; and

(e) any affidavit requirements in subsection (3) for the application have been met; and

(f) the court is satisfied that the *authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds; and

(g) there are reasonable grounds to suspect either or both of the following:

(i) that the person has committed an offence against a law of the Commonwealth, a *foreign indictable offence or a *State offence that has a federal aspect;

(ii) that 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.

Property that a restraining order may cover

(2) The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:

(a) all or specified property of the *suspect;

(b) all or specified *bankruptcy property of the suspect;

(c) all property of the suspect other than specified property;

(d) all bankruptcy property of the suspect other than specified bankruptcy property;

(e) specified property of another person (whether or not that other person's identity is known) that is subject to the *effective control of the suspect.

Affidavit requirements

(3) The application for the order must be supported by an affidavit of an *authorised officer stating:

(a) that the authorised officer suspects that the *total wealth of the *suspect exceeds the value of the suspect's *wealth that was *lawfully acquired; and

(b) if the application is to restrain property of a person other than the suspect but not to restrain *bankruptcy property of the *suspect - that the authorised officer suspects that the property is subject to the *effective control of the suspect; and

(c) that the authorised officer suspects either or both of the following:

(i) that the suspect has committed an offence against a law of the Commonwealth, a *foreign indictable offence or a *State offence that has a federal aspect;

(ii) that the whole or any part of the suspect'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.

The affidavit must include the grounds on which the authorised officer holds those suspicions.

Legal expenses

(3A) Without limiting the manner and circumstances that may be specified in an order under paragraph (1)(b), the court may order that specified property may 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.

(3B) The court may make an order under subsection (3A) despite anything in section 24.

(3C) 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 (3A) and may make any further or ancillary orders it considers appropriate.

Refusal to make a restraining order

(4) Despite subsection (1), the court may refuse to make a *restraining order if the court is satisfied that it is not in the public interest to make the order.

Note: A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.

(4A) If the court refuses to make a *restraining order under subsection (1), it may make any order as to costs it considers appropriate, including costs on an indemnity basis.

Risk of property being disposed of etc.

(5) The court may make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.

Later acquisitions of property

(6) The court may specify that a *restraining order covers property that is acquired by the *suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.