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Australia – Federal Jurisdiction


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179A Simplified outline of this Part

This Part provides for the making of certain orders relating to unexplained wealth.

A preliminary unexplained wealth order requires a person to attend court for the purpose of enabling the court to decide whether to make an unexplained wealth order against the person.

An unexplained wealth order is an order requiring the person to pay an amount equal to so much of the person’s total wealth as the person cannot satisfy the court is not derived or realised, directly or indirectly, from certain offences.
179B  Making a preliminary unexplained wealth order requiring a person to appear(1)  A court with *proceeds jurisdiction must make an order (a preliminary unexplained wealth order) requiring a person to appear before the court for the purpose of enabling the court to decide whether or not to make an *unexplained wealth order in relation to the person if:(a)  a *proceeds of crime authority applies for an unexplained wealth order in relation to the person; and(c)  any affidavit requirements in subsection (2) for the application have been met. Affidavit requirements(2)  An application for an *unexplained wealth order in relation to a person must be supported by an affidavit of an *authorised officer that:(a)  states that the authorised officer suspects that the person’s *total wealth exceeds the value of the person’s *wealth that was *lawfully acquired; and(b)  includes the grounds on which the authorised officer holds that suspicion.(3)  The court must make the order under subsection (1) without notice having been given to any person if the *responsible authority requests the court to do so.

Refusal to make preliminary unexplained wealth order

(179C  Application to revoke a preliminary unexplained wealth order(1) If a court makes a *preliminary unexplained wealth order requiring a person to appear before the court, the person may apply to the court to revoke the order.(2) The application must be made:(a) within 28 days after the person is notified of the *preliminary unexplained wealth order; or(b) if the person applies to the court, within that period of 28 days, for an extension of the time for applying for revocation—within such longer period, not exceeding 3 months, as the court allows.(4) However, the *preliminary unexplained wealth order remains in force until the court revokes the order.(5) The court may revoke the *preliminary unexplained wealth order on application under subsection (1) if satisfied that:(a) there are no grounds on which to make the order at the time of considering the application to revoke the order; or(b) it is in the public interest to do so; or(c) it is otherwise in the interests of justice to do so. 179CA  Notice and procedure on application to revoke preliminary unexplained wealth order

(1) This section applies if a person applies under section 179C for revocation of a *preliminary unexplained wealth order.(2) The applicant may appear and adduce material at the hearing of the application.(3) The applicant must give the *responsible authority:(a) written notice of the application; and(b) a copy of any affidavit supporting the application.

(4) The *responsible authority may appear and adduce additional material at the hearing of the application.(5) The *responsible authority must give the applicant a copy of any affidavit it proposes to rely on to contest the application.(6) The notice and copies of affidavits must be given under subsections (3) and (5) within a reasonable time before the hearing of the application.179D  Notice of revocation of a preliminary unexplained wealth order

If a *preliminary unexplained wealth order is revoked under section 179C, the *responsible authority must give written notice of the revocation to the applicant for the revocation.

179E Making an unexplained wealth order

(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.

(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.).

(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.

(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.

(5)  To avoid doubt, subsection (3) has effect despite section 317.

(6)  Despite subsection (1), the court may refuse to make an order under that subsection 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.

 

179G  Determining unexplained wealth amounts

Meaning of wealth

(1) The property of a person that, taken together, constitutes the wealth of a person for the purposes of this Part is: 

(a)  property owned by the person at any time;

(b)  property that has been under the *effective control of the person at any time;

(c)  property that the person has disposed of (whether by sale, gift or otherwise) or consumed at any time;

including property owned, effectively controlled, disposed of or consumed before the commencement of this Part.

Meaning of total wealth

(2) The total wealth of a person is the sum of all of the values of the property that constitutes the person’s wealth.

Value of property

(3) The value of any property that has been disposed of or consumed, or that is for any other reason no longer available, is the greater of 

(a) the value of the property at the time it was acquired; and

(b) the value of the property immediately before it was disposed of, consumed or stopped being available.

(4) The value of any other property is the greater of:

(a) the value of the property at the time it was acquired; and

(b) the value of the property on the day that the application for the *unexplained wealth order was made.

179R Enforcement of an unexplained wealth order

(1) An amount payable by a person to the Commonwealth under an *unexplained wealth order is a civil debt due by the person to the Commonwealth.

(2) An *unexplained wealth order against a person may be enforced as if it were an order made in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth.

(3) The debt arising from the order is taken to be a judgment debt.

(4) If an *unexplained wealth order is made against a person after the person’s death, this section has effect as if the person had died on the day after the order was made.

179U  Parliamentary supervision 

(1)  The operation of this Part and section 20A is subject to the oversight of the Parliamentary Joint Committee on Law Enforcement (the Committee).

Appearing before the Committee

(2) The Committee may require the Australian Crime Commission, the Australian Federal Police, the *DPP or any other federal agency or authority that is the recipient of any material disclosed as the result of the operation of this Part to appear before it from time to time to give evidence.

Report about unexplained wealth investigations and proceedings

(3) The Commissioner of the Australian Federal Police must give the Committee a report in respect of each financial year that contains the following information:

(a)  the number of matters investigated in the year, by each *enforcement agency, in respect of which a likely outcome may, or will, be the initiation of proceedings under this Part, and the basis for determining that number;

(b) the number and results of applications in the year for:

(i)  *restraining orders under section 20A; and

(ii)  *unexplained wealth orders;

(c)  any other information of a kind prescribed by the regulations. 

(4) The report must be given as soon as practicable after the report under section 67 of the Australian Federal Police Act 1979 in respect of the financial year is laid before a House of the Parliament in accordance with that section.

(5) If the Commissioner of the Australian Federal Police requests the *DPP or the Chief Executive Officer (however described) of an *enforcement agency to give the Commissioner information that the Commissioner considers necessary to prepare the report, the DPP or Chief Executive Officer must comply with the request.


Type: Civil Illicit Enrichment Laws

Last update on LEARN: Wednesday, 24 February 2021, 3:25 PM