Crimes Legislation Amendment (Unexplained Wealth and Other Measures) Act 2015 (6 of 2015)

Schedule 1   Unexplained wealth

24   Section 179SA

Repeal the section, substitute:

179SA Charge on property subject to restraining order

(1) If:

(a) an *unexplained wealth order is made against a person; and

(b) the person is the *suspect in relation to a *restraining order that is or has been made against:

(i) the *person’s property; or

(ii) another person’s property in relation to which an order under subsection 179S(1) is, or has been, made;

then, upon the making of the later of the orders, there is created, by force of this section, a charge on the property to secure the payment to the Commonwealth of the person’s *unexplained wealth amount.

(2) The charge ceases to have effect in respect of the property:

(a) upon the discharge of the *unexplained wealth order or the *restraining order by a court hearing an appeal against the making of the order; or

(b) upon payment to the Commonwealth of the *unexplained wealth amount in satisfaction of the unexplained wealth order; or

(c) upon the sale or other disposition of the property:

(i) under an order under Division 4 of Part 4-1; or

(ii) by the owner of the property with the consent of the court that made the unexplained wealth order; or

(iii) if the restraining order directed the *Official Trustee to take custody and control of the property - by the owner of the property with the consent of the Official Trustee; or

(d) upon the sale of the property to a purchaser in good faith for value who, at the time of purchase, has no notice of the charge; or

(e) upon the *responsible authority for the unexplained wealth order or restraining order determining, by writing, that the charge should cease to have effect in respect of the property;

whichever first occurs.

(3) The charge:

(a) is subject to every *encumbrance on the property (other than an encumbrance in which the person referred to in paragraph (1)(a) has an *interest) that came into existence before the charge and that would, apart from this subsection, have priority over the charge; and

(b) has priority over all other encumbrances; and

(c) subject to subsection (2), is not affected by any change of ownership of the property.

(4) Subsection 73(2) of the Personal Property Securities Act 2009 applies to the charge (to the extent, if any, to which that Act applies in relation to the property charged).

Note: The effect of this subsection is that the priority between the charge and a security interest in the property to which the Personal Property Securities Act 2009 applies is to be determined in accordance with this Act rather than the Personal Property Securities Act 2009.

(5) A determination made under paragraph (2)(e) is not a legislative instrument.

179SB Charges may be registered

(1) If:

(a) a charge is created by section 179SA on property of a particular kind; and

(b) the provisions of any law of the Commonwealth or of a State or Territory provide for the registration of title to, or charges over, property of that kind;

the *Official Trustee or the *responsible authority for the *unexplained wealth order or *restraining order referred to in that section may cause the charge so created to be registered under the provisions of that law.

(2) A person who purchases or otherwise acquires an *interest in the property after the registration of the charge is taken, for the purposes of paragraph 179SA(2)(d), to have notice of the charge at the time of the purchase or acquisition.

(3) In this section:

registration of a charge on a particular kind of personal property within the meaning of the Personal Property Securities Act 2009 includes the registration of data in relation to that kind of property for the purposes of paragraph 148(c) of that Act.

Note: The Personal Property Securities Act 2009 provides for the registration of such data only if regulations are made for the purposes of paragraph 148(c) of that Act.