CHAPTER 2
-
THE CONFISCATION SCHEME
PART 2-6
-
UNEXPLAINED WEALTH ORDERS
History
Part 2-6 inserted by No 3 of 2010, s 3 and Sch 1 item 13, effective 19 February 2010.
Division 1
-
Making unexplained wealth orders
History
Div 1 inserted by No 3 of 2010, s 3 and Sch 1 item 13, effective 19 February 2010.
SECTION 179E
Making an unexplained wealth order
179E(1)
A court with *proceeds jurisdiction must 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 or realised, directly or indirectly, from one or more of the following:
(i)
an offence against a law of the Commonwealth;
(ii)
a *foreign indictable offence;
(iia)
a *relevant offence of a *participating State;
(iii)
a *State offence that has a federal aspect;
(iv)
a *Territory offence.
History
S 179E(1) amended by No 126 of 2018, s 3 and Sch 3 item 5, by inserting para (b)(iv), effective 10 December 2018. For application provision, see note under s
20A(1)
.
S 179E(1) amended by No 126 of 2018, s 3 and Sch 2 item 5, by inserting para (b)(iia), effective 10 December 2018.
S 179E(1) amended by No 21 of 2018, s 3 and Sch 1 item 4, by inserting
"
or realised, directly or indirectly,
"
in para (b), applicable after 29 March 2018 in relation to property derived or realised, before or after 29 March 2018, from the commission of an offence occurring before or after 29 March 2018.
S 179E(1) amended by No 6 of 2015, s 3 and Sch 1 item 18, by substituting
"
must make an order
"
for
"
may make an order
"
, applicable in relation to an unexplained wealth order applied for on or after 26 February 2015, whether the application relates to wealth acquired before, on or after 26 February 2015.
179E(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 or realised, directly or indirectly, from one or more of the following:
(i)
an offence against a law of the Commonwealth;
(ii)
a *foreign indictable offence;
(iia)
a *relevant offence of a *participating State;
(iii)
a *State offence that has a federal aspect;
(iv)
a *Territory offence;
reduced by any amount deducted under section
179J
(reducing unexplained wealth amounts to take account of forfeiture, pecuniary penalties etc).
History
S 179E(2) amended by No 126 of 2018, s 3 and Sch 3 item 6, by inserting para (b)(iv), effective 10 December 2018. For application provision, see note under s
20A(1)
.
S 179E(2) amended by No 126 of 2018, s 3 and Sch 2 item 6, by inserting para (b)(iia), effective 10 December 2018.
S 179E(2) amended by No 21 of 2018, s 3 and Sch 1 item 4, by inserting
"
or realised, directly or indirectly,
"
in para (b), applicable after 29 March 2018 in relation to property derived or realised, before or after 29 March 2018, from the commission of an offence occurring before or after 29 March 2018.
179E(3)
In proceedings under this section, the burden of proving that a person
'
s *wealth is not derived or realised, directly or indirectly, from one or more of the offences referred to in paragraph (1)(b) lies on the person.
History
S 179E(3) amended by No 21 of 2018, s 3 and Sch 1 item 5, by inserting
"
or realised, directly or indirectly,
"
, applicable after 29 March 2018 in relation to property derived or realised, before or after 29 March 2018, from the commission of an offence occurring before or after 29 March 2018.
179E(4)
To avoid doubt:
(a)
when considering whether to make an order under subsection (1), the court may have regard to information not included in the application; and
(b)
the court may make an order under subsection (1) in relation to a person even if the person failed to appear as required by the *preliminary unexplained wealth order.
History
S 179E(4) substituted by No 6 of 2015, s 3 and Sch 1 item 19, applicable in relation to an unexplained wealth order applied for on or after 26 February 2015, whether the application relates to wealth acquired before, on or after 26 February 2015. S 179E(4) formerly read:
179E(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.
179E(5)
To avoid doubt, subsection (3) has effect despite section
317
.
179E(6)
Despite subsection (1), the court if the court is satisfied that:
(a)
the person
'
s *unexplained wealth amount is less than $100,000; or
(b)
it is not in the public interest to make the order.
History
S 179E(6) substituted by No 6 of 2015, s 3 and Sch 1 item 20, by substituting all the words after
"
may refuse to make an order under that subsection
"
, applicable in relation to an unexplained wealth order applied for on or after 26 February 2015, whether the application relates to wealth acquired before, on or after 26 February 2015. The words formerly read:
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.
History
S 179E inserted by No 3 of 2010, s 3 and Sch 1 item 13, effective 19 February 2010.