11A Meaning of total wealth
(1) In this Act:
total wealth, of a person to whom a proceeding for an unexplained wealth order relates, is the sum of all of the values of the person’s wealth.
(2) In deciding the values of a person’s wealth—
the value of property expended, consumed, disposed of, or for any other reason no longer available is the greater of—
(i) the value of the property at the time it was acquired; and
(ii) the value of the property immediately before expended, consumed, disposed of, or becoming unavailable; and
the value of any other property is the greater of—
(i) the value of the property at the time it was acquired; and
(ii) the value of the property on the day that the application for the unexplained wealth order was made.
11B Meaning of wealth
In this Act:
wealth, of a person—
means property that is or at any time was—
(i) owned by the person; or
(ii) under the effective control of the person; or
(iii) expended, consumed or disposed of by the person; and
Examples—property disposed of by the person
1 property sold or traded
2 property transferred as a gift
3 money spent
includes property owned, effectively controlled, expended, consumed or disposed of by the person before the commencement of this section and whether in or outside the ACT.
11C Meaning of serious criminal activity
(1) In this Act:
serious criminal activity means conduct by any person which, at the time of the conduct, was a serious offence.
(2) To remove any doubt, conduct is serious criminal activity—
whether or not charges for a serious offence have been laid against a person for the conduct; or
if charges for a serious offence have been laid against a person— whether or not the person—
(i) has been tried for the offence; or
(ii) has been acquitted, found guilty or convicted of the offences; or
(iii) has had a conviction for the offences quashed.
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26A Unexplained wealth restraining orders—application
(1) The DPP may apply to a relevant court for an unexplained wealth restraining order over any of the following:
stated property of a person;
stated property of a person and all other property of the person (including property acquired after the making of the order);
all property of a person (including property acquired after the making of the order);
all property of a person (including property acquired after the making of the order) other than stated property.
(2) The application must state the following:
that the application is for an unexplained wealth restraining order;
the person in relation to whom the order is sought;
any other person whose property the application relates to;
the property sought to be restrained (including whether it is the property of that person or someone else).
(3) The application must be supported by an affidavit under section 29A.
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29A Unexplained wealth restraining order—affidavit supporting application
(1) An affidavit by a police officer supporting an application under section 26A for an unexplained wealth restraining order must state that the police officer suspects that—
a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired; and
the whole or any part of the person’s wealth was derived from serious criminal activity.
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(2) Subsection (1) (b) does not require the police officer to specify in the affidavit a particular offence for serious criminal activity, and it is sufficient if the police officer suspects and the affidavit describes the nature of the activity in general terms.
(3) The affidavit must state, for the property mentioned in the application, or for each stated part of the property—
that the officer suspects that the property is either the property of the person in relation to whom the order is sought or the property of someone else; and
for property that the officer suspects is the property of someone else—
(i) that the officer suspects that the property is tainted property; or
(ii) that the officer suspects that the property is subject to the effective control of the person in relation to whom the order is sought.
(4) The affidavit must state that the police officer believes that the property sought to be restrained may be required to satisfy an unexplained wealth order.
(5) The affidavit must state the grounds for each belief or suspicion of the police officer stated in the affidavit.
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32A Unexplained wealth restraining order—making
(1) This section applies if an application is made under section 26A to a relevant court for an unexplained wealth restraining order.
(2) The relevant court must make an unexplained wealth restraining order over the property to which the application relates if, having regard to the police officer’s affidavit supporting the application and any other evidence before the court, the court is satisfied there are reasonable grounds for the officer’s suspicions stated in the affidavit.
(3) The restraining order may direct the public trustee and guardian to take control of the restrained property.
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48A When unexplained wealth restraining order ends
(1) An unexplained wealth restraining order ends if—
no application for an unexplained wealth order has been made in relation to the person to whom the restraining order relates within 6 weeks after the restraining order was made; or
an unexplained wealth order was applied for, the court refused to make the order and 1 of the following applies:
(i) the time for an appeal against the refusal has ended without an appeal being lodged;
(ii) an appeal against the refusal has lapsed;
(iii) an appeal against the refusal has been dismissed and finally disposed of.
(2) An unexplained wealth restraining order also ends if—
an application for an unexplained wealth order was made within 6 weeks after the restraining order was made; and
the court made the unexplained wealth order; and
either—
(i) the unexplained wealth order has been complied with; or
(ii) an appeal against the unexplained wealth order has been upheld and finally disposed of.
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Part 7A Unexplained wealth orders
Division 7A.1 General
98A Meaning of unexplained wealth order
In this Act:
unexplained wealth order means an order under this part for the payment by a person of an amount assessed by a court, in accordance with section 98E, as the value of the person’s unexplained wealth.
Division 7A.2 Making unexplained wealth orders
98B Unexplained wealth orders—application
The DPP may apply to a relevant court for an unexplained wealth order in relation to a person.
98C Unexplained wealth order—affidavit supporting application
(1) If an unexplained wealth restraining order has not been made in relation to a person the subject of an application under section 98B, an affidavit by a police officer supporting the application for an unexplained wealth order against the person must state that the police officer suspects that—
a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired; and
the whole or any part of the person’s wealth was derived from serious criminal activity.
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(2) Subsection (1) (b) does not require the police officer to specify in the affidavit a particular offence for serious criminal activity, and it is sufficient if the police officer suspects and the affidavit describes the nature of the activity in general terms.
(3) The affidavit must state, for the property mentioned in the application, or for each stated part of the property—
that the officer suspects that the property is either the property of the person in relation to whom the order is sought or the property of someone else; and
for property that the officer suspects is the property of someone else—
(i) that the officer suspects that the property is tainted property; or
(ii) that the officer suspects that the property is subject to the effective control of the person in relation to whom the order is sought.
(4) The affidavit must state the grounds for each belief or suspicion of the police officer stated in the affidavit.
98D Unexplained wealth orders—making
(1) On application under section 98B, the relevant court must make an unexplained wealth order against a person if the court is not satisfied that the whole or any part of the person’s wealth was not derived from serious criminal activity.
(2) However, the court may refuse to make an unexplained wealth order or may reduce the amount that would otherwise be payable as assessed, if the court, having regard to the purposes of this Act, thinks it is in the public interest to do so.
(3) A decision of the court to refuse to make an unexplained wealth order or to reduce an amount that would otherwise be payable as assessed is not in the public interest if based only on 1 or more of the following:
a specific serious offence has not been particularised or proved to be associated with the person’s unexplained wealth;
the person or the person’s dependants will not have the same standard of living as a result of the order or reduction.
(4) For subsection (1), wealth may be derived before the commencement of this section.
(5) In making an unexplained wealth order, the relevant court must not order the person to pay the Territory an amount that is more than the person’s unexplained wealth assessed under section 98E.
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98E Unexplained wealth orders—assessment of unexplained wealth
(1) This section applies for the purpose of making an assessment of the unexplained wealth of a person against whom an unexplained wealth order is made.
(2) The unexplained wealth, of a person, is the amount that in the opinion of a relevant court is—
the difference between—
(i) the person’s total wealth; and
(ii) the sum of the values of the property that the court is satisfied, on the balance of probabilities, was not derived from serious criminal activity; and
less an amount equal to whichever of the following applies to the person:
(i) the value of any property the person forfeited under a forfeiture order;
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(ii) the sum of any amounts payable by the person under a penalty order or an interstate penalty order.
(3) In a proceeding against a person for an unexplained wealth order, the burden of proof is on the person to prove that—
the person’s wealth was not derived from serious criminal activity; and
an order mentioned in subsection (2) (b) applies to the person.
(4) When working out the value of property for this section, the value is—
for wealth that has been consumed or otherwise disposed of—the greater of—
(i) the value at the time the wealth was acquired; and
(ii) the value immediately before the wealth was consumed or disposed of; or
in any other case—the greater of—
(i) the value at the time the wealth was acquired; and
(ii) the value at the time the application for the unexplained wealth order was made.
(5) In assessing the unexplained wealth of a person, the relevant court is not required to consider any wealth of which the DPP has not provided evidence.
98F Unexplained wealth orders—hardship relief
(1) A relevant court making an unexplained wealth order in relation to a person may make another order directing the Territory, once the unexplained wealth order is fully satisfied, to pay an amount (a relief amount) decided by the court to a dependant of the person if the court is satisfied that—
the unexplained wealth order would cause undue hardship to the dependant; and
the amount would relieve the hardship; and
if the dependant is at least 18 years old—the dependant had no knowledge of the person’s conduct that is the subject of the unexplained wealth order.
(2) When deciding the relief amount, the court—
must only allow an amount to assist the dependant to avoid undue hardship for a period in which the dependant could not reasonably be expected to meet the dependant’s reasonable living expenses; and
must as far as practicable, having regard to the minimum standard of living mentioned in section 37 (3) (a) (ii), when determining undue hardship not take into account hardship arising from the loss of a previous standard of living of the dependant to the extent that the previous standard of living was likely to have been the result of unexplained wealth.
(3) An amount decided by the court must not be more than the value of the person’s unexplained wealth.
(4) An order under this section may relate to more than 1 of the person’s dependants.
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Division 7A.3 Satisfaction of unexplained wealth order
98G Creation of unexplained wealth charge over restrained property
(1) This section applies if, in relation to a person—
a restraining order is made; and
an unexplained wealth order is made.
(2) On the making of the later of the orders, all of the restrained property is automatically charged to secure the payment to the Territory of the amount of the unexplained wealth order.
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(3) If the restraining order is varied after the unexplained wealth order is made to add more property, the additional property is also automatically charged to secure payment to the Territory of the amount of the unexplained wealth order.
(4) A charge on property created by this section (an unexplained wealth charge)—
is subject to every encumbrance on the property that came into existence before the charge and that would have priority over the charge if this subsection had not been enacted; and
has priority over all other encumbrances; and
is a statutory interest of a kind to which the Personal Property Securities Act 2009 (Cwlth), section 73 (2) applies; and
is not affected by any change in the ownership of the property unless the change in ownership ends the unexplained wealth charge under section 98H (c) or (d).
98H When unexplained wealth charge over property ends
An unexplained wealth charge over property ends when the earliest of the following events happens:
the unexplained wealth order for which the charge was created ends;
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the restraining order over the property ends;
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the property is sold, or otherwise disposed of, with the consent of—
(i) the relevant court that made the unexplained wealth order; or
(ii) if a trustee (including the public trustee and guardian) controls the property—the trustee;
the property is sold to a purchaser who—
(i) buys the property honestly and for sufficient consideration; and
(ii) at the time of the purchase, has no notice of the charge.
98I Unexplained wealth orders—enforceable as judgment debt
The amount ordered to be paid by a relevant court under an unexplained wealth order is a judgment debt owing to the Territory.
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