## Australia – Victoria

40C Unexplained wealth restraining orders

(1) An unexplained wealth restraining order is an order that no property or interest in property, that is property or an interest to which the order applies, is to be disposed of, or otherwise dealt with by any person except in the manner and circumstances (if any) specified in the order.

40F Application for unexplained wealth restraining order

(1) The DPP or an appropriate officer may apply without notice to a court for an unexplained wealth restraining order in respect of property if a police officer suspects on reasonable grounds that—

a person has engaged in serious criminal activity; and
that person has an interest in the property; and
in the case of property located outside Victoria—that serious criminal activity occurred within Victoria; and
the total value of the property that is the subject of the application is $50 000 or more. (2) The DPP or an appropriate officer may apply without notice to a court for an unexplained wealth restraining order in respect of property if a police officer suspects on reasonable grounds that— the property was not lawfully acquired; and either— (i) the property is located in Victoria; or (ii) the person who has acquired the property is ordinarily resident in Victoria. (3) An application under subsection (1) or (2) must be supported by an affidavit of a police officer— setting out any relevant matters; and in the case of an application under subsection (1), stating that the police officer suspects that— (i) a person has engaged in serious criminal activity; and (ii) that person has an interest in the property; and (iii) in the case of property located outside Victoria—that serious criminal activity occurred within Victoria; and (iv) the total value of the property that is the subject of the application is$50 000 or more; and
in the case of an application under subsection (2), stating that the police officer suspects that—
(i) the property was not lawfully acquired; and
(ii) either—
(A) the property is located in Victoria; or
(B) the person who has acquired the property is ordinarily resident in Victoria; and
setting out the grounds on which the police officer has the suspicion referred to in paragraph (b) or (c) (as the case may be).

(4) In addition, an affidavit supporting an application under subsection (2) must identify the person who has or the persons who have an interest in the property suspected of not having been lawfully acquired if that information is known to the police officer at the time of the application.

(5) An application under subsection (1) for an unexplained wealth restraining order does not need to specify a particular offence constituting the serious criminal activity but may specify one or more offences that constitute the serious criminal activity.

(6) For the purposes of this section, property in which a person has an interest includes—

property that is subject to the effective control of the person; and
property that was the subject of a gift from the person to another person regardless of when the gift was made.

(7) An application for a restraining order or a civil forfeiture restraining order in relation to property or an interest in property does not preclude an application for an unexplained wealth restraining order being made in relation to the same property or interest in property.

(8) An application for an unexplained wealth restraining order may be made more than once in respect of the same property or interest in property.

40I Determination of application for unexplained wealth restraining order

(1) On an application under section 40F(1) for an unexplained wealth restraining order, the court must make an unexplained wealth restraining order if it is satisfied that—

the deponent of the affidavit supporting the application does suspect that—
(i) a person has engaged in serious criminal activity; and
(ii) that person has an interest in the property sought to be restrained; and
(iii) in the case of property located outside Victoria—the serious criminal activity occurred in Victoria; and
(iv) the total value of the property is $50 000 or more; and there are reasonable grounds for the suspicion referred to in paragraph (a)(i), (ii) and (iii). (2) The court may be satisfied that the deponent of the affidavit reasonably suspects that a person with an interest in the property has engaged in serious criminal activity— regardless of whether that person, or any other person, has been charged with, tried for, acquitted or convicted of, or has had a conviction quashed, pardoned or set aside for, an offence that is, or offences that are, suspected of constituting the serious criminal activity; and where more than one offence is specified as constituting the serious criminal activity—if the court is satisfied that the deponent reasonably suspects that the conduct of the person constitutes at least one of those offences. (3) On an application under section 40F(2) for an unexplained wealth restraining order, the court must make an unexplained wealth restraining order if it is satisfied that— the deponent of the affidavit supporting the application does suspect that— (i) the property sought to be restrained was not lawfully acquired; and (ii) either— (A) the property is located in Victoria; or (B) the person who has acquired the property is ordinarily resident in Victoria; and there are reasonable grounds for that suspicion. (4) For the purposes of subsection (3)(b), in determining whether there are reasonable grounds for suspecting that property was not lawfully acquired, the court may have regard to one or more of the following— the lawful income of a person with an interest in, or effective control of, the property; any suspected unlawful activity of a person with an interest in, or effective control of, the property; the prior ownership of the property and any suspected unlawful activity of a person, or persons, who previously owned the property; the circumstances under which the property has come to the attention of Victoria Police; any other relevant matter. 40K Notice requiring declaration of interests in restrained property (1) Subject to subsection (2), if an unexplained wealth restraining order is made in respect of property, a officer must give a notice to each person who the applicant for the unexplained wealth restraining order believes has an interest in that property requiring the person to give to the police officer a written declaration of interests in restrained property. (2) If a notice under section 40M is given to a person who the applicant for the unexplained wealth restraining order believes has an interest in property restrained under the unexplained wealth restraining order, a police officer may, but is not required to, issue a notice under subsection (1). (3) A notice under subsection (1) must— be in the prescribed form; and state the effect of section 40O. 40M Notice to person suspected of engaging in serious criminal activity (1) If an unexplained wealth restraining order is made under section 40I(1) on the basis that a person is suspected of having engaged in serious criminal activity, a police officer may give a notice to the person requiring the person to give to the police officer a written declaration of the person's property interests. (2) A notice under subsection (1) must— be in the prescribed form; and state the effect of section 40O. (3) If a person suspected of having engaged in serious criminal activity is also a person to whom a notice under section 40K must be given— a notice under subsection (1) may be given in place of the notice under section 40K; and the giving of a notice to the person under section 40K does not preclude the giving of a notice to the person under subsection (1) at a later date. 40N What must be included in a declaration by an owner of property? (1) Subject to subsection (2), a person who has been given a notice under section 40M must provide a written declaration of property interests that states the following information — (a) particulars of any sources of income of the person, including bequests; (b) any bank or building society accounts held by the person, whether solely or jointly; (c) any real property in which the person holds an interest; (d) any unit trusts, ledgers, shares or debentures in which the person holds an interest; (e) the amount of any cash held by the person, including cash held as virtual currency, and the source of the cash; (f) any motor vehicles, boats, works of art, livestock or jewellery owned by the person that have an individual value of$5000 or more;

(g) any safe deposit boxes held by the person;

(h) any charge and credit cards held by the person;

(i) any accounts held by the person for the purposes of gambling;

(j) any trusts in which the person has a beneficial interest;

(k) any transfers of property made by the person to another person in the previous 6 years if the total value of those transfers is $50 000 or more; (l) any transfers of property to the person made by another person in the previous 6 years if the total value of those transfers is$50 000 or more.

(2) In addition, if a notice under section 40M is given to a person in place of a notice under section 40K, the declaration must include any statement required under section 40L.

(1) A statement made by a person in a declaration of property interests given in response to a notice under section 40K or 40M is admissible against that person in—

a proceeding for making a false or misleading statement in the declaration; or
any proceeding under this Act—

but is not otherwise admissible in evidence against that person.

(2) Any information, document or other thing obtained as a direct or indirect consequence of making a statement in a declaration of property interests given in response to a notice under section 40K or 40M is admissible against that person in—

a proceeding for making a false or misleading statement in the declaration; or
any proceeding under this Act—

but is not otherwise admissible in evidence against that person.

40R Application for exclusion from unexplained wealth restraining order

(1) If a court makes an unexplained wealth restraining order against property, any person claiming an interest in the property may apply to the court that made that order for a section 40S exclusion order.

40ZA Forfeiture of unexplained wealth

(1) Subject to subsection (2), property that is the subject of an unexplained wealth restraining order is forfeited to the Minister on the expiry of 6 months after the making of the unexplained wealth restraining order.

(2) If, on the expiry of the 6 months referred to in subsection (1), an application under section 40R is still pending, the restrained property is forfeited to the Minister—

if the application is refused or dismissed—
(i) at the end of the period during which the person may appeal against the refusal or dismissal; or
(ii) if an appeal against the refusal or dismissal is lodged—when the appeal is abandoned or finally determined without the order having been made; or
if the application is withdrawn or struck out—on that withdrawal or striking out.

(3) For the purposes of subsection (2), an application under section 40R is not pending unless an application under section 40R(1) has been made—

within the period referred to in section 40R(2); or
where, under section 40R(3), the court has extended the period in which the application may be made—within the period as so extended and before the expiry of the period of 6 months referred to in subsection (1).

Type: Qualified Civil Illicit Enrichment Laws

Last update on LEARN: Thursday, 3. March 2022, 13:00