Unexplained Wealth Legislation Amendment Act 2018 (126 of 2018)

Schedule 1 State reference or adoption for the purposes of the national cooperative scheme on unexplained wealth

Proceeds of Crime Act 2002

2 After section 14

Insert:

14A Concurrent operation of State and Territory laws

(1) This Act does not exclude or limit the operation of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.

(2) Subsection (1) does not apply to the *national unexplained wealth provisions.

Note: For the interaction between the national unexplained wealth provisions and a law of a State or Territory, see section 14L.

Division 2 - The national unexplained wealth provisions

Subdivision A - General

14B Constitutional basis of the national unexplained wealth provisions

What this section is about

(1) This section sets out the constitutional basis of the *national unexplained wealth provisions.

National unexplained wealth provisions

(2) The national unexplained wealth provisions are:

(a) the *main unexplained wealth provisions; and

(b) the *participating jurisdiction information gathering provisions; and

Main unexplained wealth provisions

(3) The main unexplained wealth provisions are:

(a) section 20A and Part 2-6; and

(b) the other provisions of this Act in so far as they relate to that section or that Part; and

Participating jurisdiction information gathering provisions

(4) The participating jurisdiction information gathering provisions are:

(a) section 14M and Schedule 1; and

(b) the other provisions of this Act in so far as they relate to that section or that Schedule; and

Unexplained wealth machinery and transitional provisions

(5) The unexplained wealth machinery and transitional provisions are:

(a) the following provisions (the main machinery and transitional provisions ):

(i) sections 14A to 14L and 14N;

(ii) the definitions of adoption Act , amendment reference , cooperating State , express amendment , information gathering , main machinery and transitional provisions , main unexplained wealth provisions , national unexplained wealth provisions , non-participating State , participating jurisdiction information gathering provisions , participating State , post-amended version 1 of this Act , post-amended version 2 of this Act , pre-amended version of this Act , referral Act , relevant law 1 , relevant law 2 , special confiscation law , text reference 1 , text reference 2 , unexplained wealth and unexplained wealth machinery and transitional provisions in section 338;

(iii) Schedule 2; and

(b) the other provisions of this Act in so far as they relate to any of the main machinery and transitional provisions; and

Application in participating States

(6) The application of the *national unexplained wealth provisions in a *participating State is based on:

(a) the legislative powers that the Commonwealth Parliament has because of a reference or an adoption by the Parliaments of the participating States under paragraph 51(xxxvii) of the Constitution; and

(b) the other legislative powers that the Commonwealth Parliament has under the Constitution.

Application in non-participating States

(7) The application of the *national unexplained wealth provisions (other than the *unexplained wealth machinery and transitional provisions) in a *non-participating State is based on:

(a) the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and

(b) the other legislative powers that the Commonwealth Parliament has under the Constitution.

(8) The application of the *unexplained wealth machinery and transitional provisions in a *non-participating State that:

(a) was a *participating State because it had referred to the Commonwealth Parliament:

(i) *text reference 1; and

(ii) *text reference 2; and

(iii) the *amendment reference; and

(b) ceased to be a participating State because it terminated either or both of the following:

(i) the referral of text reference 1;

(ii) the referral of the amendment reference; and

is based on:

(d) the legislative powers that the Commonwealth Parliament has because of the referral of text reference 2 under paragraph 51(xxxvii) of the Constitution; and

(e) the other legislative powers that the Commonwealth Parliament has under the Constitution.

(9) The application of the *unexplained wealth machinery and transitional provisions in a *non-participating State that:

(a) was a *participating State because it had:

(i) adopted *post-amended version 1 of this Act; and

(ii) adopted *post-amended version 2 of this Act; and

(iii) referred to the Commonwealth Parliament the *amendment reference; and

(b) ceased to be a participating State because it terminated either or both of the following:

(i) the adoption of post-amended version 1 of this Act;

(ii) the referral of the amendment reference; and

is based on:

(d) the legislative powers that the Commonwealth Parliament has because of the adoption of post-amended version 2 of this Act under paragraph 51(xxxvii) of the Constitution; and

(e) the other legislative powers that the Commonwealth Parliament has under the Constitution.

(10) The application of the *unexplained wealth machinery and transitional provisions in a *non-participating State not covered by subsection (8) or (9) is based on:

(a) the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and

(b) the other legislative powers that the Commonwealth Parliament has under the Constitution.

Application in a self-governing Territory

(11) The application of the *national unexplained wealth provisions in a *self-governing Territory is based on:

(a) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory; and

(b) the other legislative powers that the Commonwealth Parliament has under the Constitution.

Despite section 2H of the Acts Interpretation Act 1901, the national unexplained wealth provisions as applying in a self-governing Territory are laws of the Commonwealth.

Application outside Australia

(12) The application of the *national unexplained wealth provisions outside *Australia is based on:

(a) the legislative powers that the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and

(b) the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxix)) and section 122 of the Constitution; and

14C What is a participating State ?

Participating State

(1) A State is a participating State if, for the purposes of paragraph 51(xxxvii) of the Constitution, the Parliament of the State:

(a) has, by its *referral Act, referred to the Commonwealth Parliament:

(i) *text reference 1 (see subsection (2)); and

(ii) *text reference 2 (see subsection (3)); and

(iii) the *amendment reference (see subsection (4));

before the enactment of the Unexplained Wealth Legislation Amendment Act 2018; or

(b) has, by its *adoption Act:

(i) adopted *post-amended version 1 of this Act (see subsection (5)); and

(ii) adopted *post-amended version 2 of this Act (see subsection (6)); and

(iii) referred to the Commonwealth Parliament the amendment reference;

after the enactment of the Unexplained Wealth Legislation Amendment Act 2018.

Text reference 1

(2) Text reference 1 of a State means the matters to which the *pre-amended version of this Act would relate if *express amendments were made to it in the terms, or substantially in the terms, of *relevant law 1, but excluding matters to which the pre-amended version of this Act otherwise relates.

Text reference 2

(3) Text reference 2 of a State means the matters to which the *pre-amended version of this Act would relate if *express amendments were made to it in the terms, or substantially in the terms, of *relevant law 2, but excluding matters to which the pre-amended version of this Act otherwise relates.

Amendment reference

(4) The amendment reference of a State means the matters relating to:

(a) *unexplained wealth (see section 14D); and

(b) *information gathering (see section 14E);

to the extent of making laws with respect to those matters by making *express amendments of this Act.

Post-amended version 1 of this Act

(5) Post-amended version 1 of this Act , in relation to the *adoption Act of a State, means this Act as amended by:

(a) *relevant law 1; and

(b) any other *express amendments of this Act that:

(i) were enacted at any time after the enactment of relevant law 1 but before the enactment of the adoption Act; and

(ii) were not amendments of the *main machinery and transitional provisions (see subsection 14B(5));

to the extent that this Act as so amended is a law with respect to *text reference 1 or the *amendment reference referred to the Commonwealth Parliament by the Parliament of another State for the purposes of paragraph 51(xxxvii) of the Constitution.

Post-amended version 2 of this Act

(6) Post-amended version 2 of this Act , in relation to the *adoption Act of a State, means this Act as amended by:

(a) *relevant law 2; and

(b) any other *express amendments of this Act that:

(i) were enacted at any time after the enactment of relevant law 2 but before the enactment of the adoption Act; and

(ii) were amendments of the *main machinery and transitional provisions (see subsection 14B(5));

to the extent that this Act as so amended is a law with respect to *text reference 2 or the *amendment reference referred to the Commonwealth Parliament by the Parliament of another State for the purposes of paragraph 51(xxxvii) of the Constitution.

Certain things do not affect a participating State's status

(7) A State is a participating State even if the State's *referral Act or *adoption Act provides that:

(a) the reference to the Commonwealth Parliament of *text reference 1, *text reference 2 or the *amendment reference is to terminate in particular circumstances; or

(b) the adoption of *post-amended version 1 of this Act or *post-amended version 2 of this Act is to terminate in particular circumstances; or

(c) the reference to the Commonwealth Parliament of the amendment reference does not include the matter of including a provision in section 20A or Part 2-6 that:

(i) requires a person pay an amount otherwise than by order of a court; or

(ii) requires or permits property (within the meaning of subsection 14D(2)) to be restrained, forfeited or seized otherwise than by order of a court; or

(d) the reference to the Commonwealth Parliament of text reference 1, text reference 2 or the amendment reference has effect only:

(i) if and to the extent that the matter is not included in the legislative powers of the Commonwealth Parliament (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); or

(ii) if and to the extent that the matter is included in the legislative powers of the Parliament of the State.

When a State ceases to be a participating State

(8) A State ceases to be a participating State if:

(a) in the case where the Parliament of the State has referred to the Commonwealth Parliament *text reference 1 and *text reference 2 - either or both of those references terminate; or

(b) in the case where the Parliament of the State has adopted the *post-amended version 1 of this Act and *post-amended version 2 of this Act - either or both of those adoptions terminate.

(9) A State ceases to be a participating State if:

(a) the State's referral of the *amendment reference terminates; and

(b) subsection (10) does not apply to the termination.

(10) A State does not cease to be a participating State because of the termination of its referral of the *amendment reference if:

(a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and

(b) the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and

Other definitions

(11) In this Act:

adoption Act , of a State, means the Act of the State that:

(a) adopts *post-amended version 1 of this Act; and

(b) adopts *post-amended version 2 of this Act; and

express amendment of this Act means the direct amendment of the text of this Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act or by an instrument under a Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act.

pre-amended version of this Act , in relation to the *referral Act of a State, means this Act as originally enacted and as subsequently amended by amendments enacted at any time before the enactment of the referral Act of the State.

referral Act , of a State, means the Act of the State that refers *text reference 1, *text reference 2 and the *amendment reference to the Commonwealth Parliament.

relevant law 1 means Schedules 2 and 4 to the Unexplained Wealth Legislation Amendment Act 2018.

relevant law 2 means Schedule 1 to the Unexplained Wealth Legislation Amendment Act 2018.

14D Meaning of unexplained wealth

(1) For the purposes of the *amendment reference of a State (see subsection 14C(4)), unexplained wealth means property or wealth that might not have been lawfully acquired.

(2) The meaning of lawfully acquired , property and wealth in subsection (1) includes, but is not limited to, the meaning of those terms in this Act as in force immediately before the enactment of the first *referral Act of a State.

14E Meaning of information gathering

For the purposes of the *amendment reference of a State (see subsection 14C(4)), information gathering means the production or provision of information for the purposes of, or relevant to, the taking of action, or the institution of proceedings, under a law of the State.

14F When a non-participating State is a cooperating State

States that have referred text references 1 and 2

(1) A *non-participating State is a cooperating State if:

(a) an *express amendment of section 14G or 14J (about rollback), or Division 2 of Part 4-3 (about sharing proceeds), was enacted; and

(b) before the amendment was enacted, the State was a *participating State; and

(c) after the amendment was enacted, the State ceased to be a participating State because it terminated either or both of the following:

(i) the referral of *text reference 1;

(ii) the referral of the *amendment reference; and

(d) the termination was effected by a proclamation that was made under the State's *referral Act for the purposes of this section; and

(e) the State has not terminated its referral of *text reference 2.

Note: Under Division 2 of Part 4-3 (which is about sharing proceeds of confiscated assets under the national cooperative scheme), a non-participating State that is a cooperating State is treated in the same way as a participating State.

States that have adopted the post-amended versions of this Act

(2) A *non-participating State is also a cooperating State if:

(a) an *express amendment of section 14G or 14J (about rollback), or Division 2 of Part 4-3 (about sharing proceeds), was enacted; and

(b) before the amendment was enacted, the State was a *participating State; and

(c) after the amendment was enacted, the State ceased to be a participating State because it terminated either or both of the following:

(i) the adoption of *post-amended version 1 of this Act;

(ii) the referral of the *amendment reference; and

(d) the termination was effected by a proclamation that was made under the State's *adoption Act for the purposes of this section; and

(e) the State has not terminated its adoption of *post-amended version 2 of this Act.

(3) Despite subsections (1) and (2), a *non-participating State ceases to be, or is not, a cooperating State if a declaration under subsection (4) is in force in relation to the State.

(4) The Minister may, by legislative instrument, declare that a State is not a *cooperating State.

(5) A declarationmade under subsection (4) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration.

Subdivision B - Rollback of particular express amendments

14G Effect of rollback by participating States on unexplained wealth proceedings

When this section applies

(1) This section applies if:

(a) a proclamation is made under the *referral Act or *adoption Act of a *participating State for the purposes of this section; and

(b) the proclamation declares that an *express amendment of this Act (other than this Subdivision) is not to apply to proceedings covered by subsection (3), (4) or (5); and

Application of this Act to proceedings

(2) This Act applies to the proceedings as if the amendment had not been enacted.

Proceedings for restraining orders

(3) Proceedings are covered by this subsection if:

(a) the proceedings are instituted while the proclamation is in force; and

(b) the proceedings are for the making of a *restraining order under section 20A in relation to a *suspect; and

(c) the affidavit supporting the application for the order states that an *authorised officer suspects either or both of the following:

(i) that the suspect has committed a *relevant offence of a *participating State;

(ii) that the whole or any part of the suspect's *wealth was derived from a relevant offence of a participating State.

Proceedings for unexplained wealth orders

(4) Proceedings are covered by this subsection if:

(a) the proceedings are instituted while the proclamation is in force; and

(b) the proceedings are for the making of an *unexplained wealth order (including a *preliminary unexplained wealth order) in relation to a *suspect; and

(c) the application for the order states that an *authorised officer suspects that the whole or any part of the suspect's *wealth was derived from a *relevant offence of a *participating State.

Proceedings for other orders

(5) Proceedings are covered by this subsection if:

(a) the proceedings are instituted while the proclamation is in force; and

(b) the proceedings are for the making of an order that relates to:

(i) a *restraining order made in proceedings covered by subsection (3); or

(ii) an *unexplained wealth order (including a *preliminary unexplained wealth order) made in proceedings covered by subsection (4).

14H Effect of rollback by self-governing Territories on unexplained wealth proceedings

When this section applies

(1) This section applies if:

(a) a law (the disapplying law ) of a *self-governing Territory is made for the purposes of this section; and

(b) the law declares that an *express amendment of this Act (other than this Subdivision) is not to apply to proceedings covered by subsection (3), (4) or (5); and

Application of this Act to proceedings

(2) This Act applies to the proceedings as if the amendment had not been enacted.

Proceedings for restraining orders

(3) Proceedings are covered by this subsection if:

(a) the proceedings are instituted while the disapplying law is in force; and

(b) the proceedings are for the making of a *restraining order under section 20A in relation to a *suspect; and

(c) the affidavit supporting the application for the order states that an*authorised officer suspects either or both of the following:

(i) that the suspect has committed a *Territory offence;

(ii) that the whole or any part of the suspect's *wealth was derived from a Territory offence.

Proceedings for unexplained wealth orders

(4) Proceedings are covered by this subsection if:

(a) the proceedings are instituted while the disapplying law is in force; and

(b) the proceedings are for the making of an *unexplained wealth order (including a *preliminary unexplained wealth order) in relation to a *suspect; and

(c) the application for the order states that an *authorised officer suspects that the whole or any part of the suspect's *wealth was derived from a *Territory offence.

Proceedings for other orders

(5) Proceedings are covered by this subsection if:

(a) the proceedings are instituted while the disapplying law is in force; and

(b) the proceedings are for the making of an order that relates to:

(i) a *restraining order that has been made in proceedings covered by subsection (3); or

(ii) an *unexplained wealth order (including a *preliminary unexplained wealth order) that has been made in proceedings covered by subsection (4).

14J Effect of rollback by participating States on action taken under State reference information gathering provisions

When this section applies

(1) This section applies if:

(a) a proclamation is made under the *referral Act or *adoption Act of a *participating State for the purposes of this section; and

(b) the proclamation declares that an *express amendment of this Act (other than this Subdivision) is not to apply to:

(i) an application covered by subsection (3); or

(ii) an order made as a result of an application covered by subsection (3); or

(iii) a notice covered by subsection (4); and

Application of this Act to the application, order or notice

(2) This Act applies to the application, order or notice as if the amendment had not been enacted.

Applications for production orders

(3) This subsection covers an application if:

(a) the application is made while the proclamation is in force; and

(b) the application is for the making of a *production order under clause 1 of Schedule 1; and

Notices to financial institutions

(4) This subsection covers a notice if:

(a) the notice is given while the proclamation is in force; and

(b) the notice is given to a *financial institution under clause 12 of Schedule 1; and

14K Effect of rollback by self-governing Territories on action taken under State reference information gathering provisions

When this section applies

(1) This section applies if:

(a) a law (the disapplying law ) of a *self-governing Territory is made for the purposes of this section; and

(b) the disapplying law declares that an *express amendment of this Act (other than this Subdivision) is not to apply to:

(i) an application covered by subsection (3); or

(ii) an order made as a result of an application covered by subsection (3); or

(iii) a notice covered by subsection (4); and

Application of this Act to the application, order or notice

(2) This Act applies to the application, order or notice as if the amendment had not been enacted.

Applications for production orders

(3) This subsection covers an application if:

(a) the application is made while the disapplying law is in force; and

(b) the application is for the making of a *production order under clause 1 of Schedule 1; and

Notices to financial institutions

(4) This subsection covers a notice if:

(a) the notice is given while the disapplying law is in force; and

(b) the notice is given to a *financial institution under clause 12 of Schedule 1; and

Subdivision C - Interaction of the national unexplained wealth provisions and orders with State and Territory laws and orders

14L Concurrent operation of State and Territory laws with national unexplained wealth provisions

Concurrent operation of laws

(1) The *national unexplained wealth provisions do not exclude or limit the operation of a law of a State or Territory (including a *special confiscation law) to the extent that the law is capable of operating concurrently with those provisions.

(2) A *corresponding law of a State or Territory is a special confiscation law while the State is a *participating State or the Territory is a *self-governing Territory.

(3) Without limiting subsection (1), the *national unexplained wealth provisions do not exclude or limit the concurrent operation of a *special confiscation law merely because:

(a) that law, or an order made under that law:

(i) prevents or restricts a person from disposing of, or dealing with, property (for example, by way of a restraining order made under that law); or

(ii) confiscates or forfeits property of a person (for example, by way of a forfeiture order made under that law); or

(iii) requires the person to pay an amount (for example, by way of an unexplained wealth order made under that law); or

(iv) deals with a matter prescribed by the regulations; and

(b) the national unexplained wealth provisions, or an order made under those provisions, also:

(i) prevent or restrict the person from disposing of, or dealing with, the property (for example, by way of a restraining order under section 20A); or

(ii) require the person to pay an amount (for example, by way of an *unexplained wealth order); or

(iii) deal with a matter prescribed by the regulations.

(4) Subsection (3) applies even if the *special confiscation law, or order made under that law, does any one or more of the following:

(a) prevents or restricts a person from disposing of, or dealing with, property in circumstances in which a *restraining order under section 20A could not be obtained to prevent or restrict such disposal or dealing;

(b) prevents or restricts, in particular circumstances, disposal of, or dealing with, more or less property than could be covered by a restraining order under section 20A in those circumstances;

(c) prevents or restricts disposal of, or dealing with, property that is or could be excluded from a restraining order under section 20A;

(d) confiscates or forfeits, in particular circumstances, property of a greater or lesser value than the *unexplained wealth amount of a person under an *unexplained wealth order that is or could be made in those circumstances;

(e) requires payment of an amount that is greater or lesser than the amount that is or could be payable under an unexplained wealth order;

(f) deals with a matter prescribed by the regulations.

This section does not affect section 14A

(5) This section does not by implication affect section 14A (which deals with the concurrent operation of this Act, except the *national unexplained wealth provisions, and laws of States and Territories).

Application of this section

(6) This section applies in relation to the operation of the *national unexplained wealth provisions and a law of a *participating State or *self-governing Territory in the period referred to in subsection (7), including in relation to:

(a) orders that are made under a *special confiscation law in that period in relation to proceedings that are instituted under the special confiscation law before or in that period; and

(b) orders that are made under a special confiscation law before that period and that are in force at any time in that period; and

(c) orders that are made under the national unexplained wealth provisions in that period in relation to proceedings that are instituted under the national unexplained wealth provisions before or in that period.

(7) For the purposes of subsection (6), the period is as follows:

(a) for a *participating State that has a *referral Act - the period starts at the commencement of this section and ends only if the State ceases to be a participating State, in which case, the period ends at the time the State so ceases;

(b) for a participating State that has an *adoption Act - the period starts at the commencement of the State's adoption Act and ends only if the State ceases to be a participating State, in which case, the period ends at the time the State so ceases;

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