Original Text (source)
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.
