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Australia - New South Wales


28A Making of [an] unexplained wealth order

(1)  The Commission may apply to the Supreme Court for an unexplained wealth order requiring a person to pay to the Treasurer an amount assessed by the Court as the value of the unexplained wealth of the person.

(2)  The Supreme Court must make an unexplained wealth order if the Court finds that there is a reasonable suspicion that the person against whom the order is sought has, at any time before the making of the application for the order: engaged in a serious crime related activity or serious crime related activities, or acquired serious crime derived property from any serious crime related activity of another person (whether or not the person against whom the order is made knew or suspected that the property was derived from illegal activities).

(3)  A finding under this section need not be based on a reasonable suspicion as to the commission of a particular offence and can be based on a reasonable suspicion that some offence or other constituting a serious crime related activity was committed.

(4)  The Supreme Court may refuse to make an unexplained wealth order, or may reduce the amount that would otherwise be payable as assessed under section 28B, if it thinks it is in the public interest to do so.

(5)  Engagement in a serious crime related activity or the acquisition of serious crime derived property referred to in subsection (2) extends to engagement in an activity or the acquisition of property before the commencement of this section.

28B   Assessment for [an] unexplained wealth order—unexplained wealth

(1) This section applies for the purpose of making an assessment for an unexplained wealth order of the unexplained wealth of a person against whom the order is made.

(2) The unexplained wealth of a person is the whole or any part of the current or previous wealth of the person that the Supreme Court is not satisfied on the balance of probabilities is not or was not illegally acquired property or the proceeds of an illegal activity.

 (3) The burden of proof in proceedings against a person for an unexplained wealth order is on the person to prove that the person’s current or previous wealth is not or was not illegally acquired property or the proceeds of an illegal activity.

(4) The current or previous wealth of a person is the amount that is the sum of the values of the following: all interests in property of the person, all interests in property that are subject to the effective control of the person, all interests in property that the person has, at any time, expended, consumed or otherwise disposed of (by gift, sale or any other means), any service, advantage or benefit provided at any time for the person or, at the person’s request or direction, to another person, whether acquired, disposed of or provided before or after the commencement of this section and whether within or outside New South Wales.

(5) In assessing the unexplained wealth of a person, the Supreme Court is not required to consider any current or previous wealth of which the Commission has not provided evidence.

 (6) The value of anything included as current or previous wealth is: in the case of wealth that has been expended, 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 expended, consumed or otherwise 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.

28C General provisions applying to proceeds assessment and unexplained wealth orders


(6) The amount a person is required to pay under a proceeds assessment order or unexplained wealth order is a debt payable by the person to the Crown on the making of the order and is recoverable as such.


Type: Qualified Civil Illicit Enrichment Laws

Last update on LEARN: Thursday, 3 de March de 2022 às 13:17