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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Crimes Legislation Amendment
(Unexplained Wealth and Other
Measures) Bill 2014
No. , 2014
(Justice)
A Bill for an Act to amend legislation relating to the
criminal law, and for related purposes
No. , 2014
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedule(s) ........................................................................................ 2
Schedule 1--Unexplained wealth
3
Proceeds of Crime Act 2002
3
Schedule 2--Other amendments
16
Proceeds of Crime Act 2002
16
No. , 2014
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
1
A Bill for an Act to amend legislation relating to the
1
criminal law, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Crimes Legislation Amendment
5
(Unexplained Wealth and Other Measures) Act 2014.
6
2 Commencement
7
This Act commences on the day after this Act receives the Royal
8
Assent.
9
2
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
No. , 2014
3 Schedule(s)
1
Each Act that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
Unexplained wealth Schedule 1
No. , 2014
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
3
Schedule 1
--
Unexplained wealth
1
2
Proceeds of Crime Act 2002
3
1 After paragraph 5(d)
4
Insert:
5
(da) to undermine the profitability of criminal enterprises; and
6
2 Subsection 20A(1)
7
Omit "may order", substitute "must order".
8
3 Subsections 20A(3A) to (3C)
9
Repeal the subsections.
10
4 Subsection 20A(4)
11
Omit all the words from and including "if" to and including "the order"
12
substitute:
13
if the court is satisfied that:
14
(a) there are not reasonable grounds to suspect that the person's
15
*
total wealth exceeds by $100,000 or more the value of the
16
person's
*
wealth that was
*
lawfully acquired; or
17
(b) it is not in the public interest to make the order.
18
5 Subsection 20A(4A)
19
Omit "subsection (1)", substitute "this section".
20
6 Subsection 20A(5)
21
Omit "may", substitute "must".
22
7 After subsection 45(6)
23
Insert:
24
Restraining orders and charges relating to unexplained wealth
25
orders
26
(6A) If:
27
Schedule 1 Unexplained wealth
4
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
No. , 2014
(a) a
*
restraining order referred to in paragraph 179SA(1)(b)
1
would otherwise cease to be in force under this section at a
2
particular time; but
3
(b) a charge on the property against which the restraining order
4
was made is created by subsection 179SA(1) before that
5
time;
6
then despite anything in subsection (1), (2), (3) or (6) of this
7
section, the restraining order does not cease to be in force until the
8
charge ceases to have effect in respect of the property in
9
accordance with subsection 179SA(2).
10
Section does not apply to unexplained wealth restraining orders
11
8 Subsection 45A(1)
12
Repeal the subsection, substitute:
13
Restraining orders made before application for unexplained wealth
14
order
15
(1) A
*
restraining order made under section 20A ceases to be in force
16
if:
17
(a) no application for an
*
unexplained wealth order had been
18
made in relation to the
*
suspect to whom the restraining order
19
relates before the restraining order was made; and
20
(b) no such application has been made in relation to the suspect
21
within 28 days after the restraining order was made.
22
9 Paragraph 45A(2)(c)
23
Repeal the paragraph, substitute:
24
(c) the court refuses to make either:
25
(i) a
*
preliminary unexplained wealth order in connection
26
with the application for the unexplained wealth order; or
27
(ii) the unexplained wealth order itself; and
28
10 After subsection 45A(3)
29
Insert:
30
Unexplained wealth Schedule 1
No. , 2014
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
5
Restraining orders made after application for unexplained wealth
1
order
2
(3A) A
*
restraining order made under section 20A ceases to be in force
3
if:
4
(a) the restraining order was made at the same time as or after an
5
application for an
*
unexplained wealth order is made in
6
relation to the
*
suspect to whom the restraining order relates;
7
and
8
(b) the court refuses to make either:
9
(i) a
*
preliminary unexplained wealth order in connection
10
with the application for the unexplained wealth order; or
11
(ii) the unexplained wealth order itself; and
12
(c) one of the following applies:
13
(i) the time for an appeal against the refusal has expired
14
without an appeal being lodged;
15
(ii) an appeal against the refusal has lapsed;
16
(iii) an appeal against the refusal has been dismissed and
17
finally disposed of.
18
(3B) A
*
restraining order made under section 20A ceases to be in force
19
if:
20
(a) the restraining order was made at the same time as or after an
21
application for an
*
unexplained wealth order is made in
22
relation to the
*
suspect to whom the restraining order relates;
23
and
24
(b) the court makes the unexplained wealth order (whether
25
before or after the restraining order was made or applied for);
26
and
27
(c) either:
28
(i) the unexplained wealth order is complied with; or
29
(ii) an appeal against the unexplained wealth order has been
30
upheld and finally disposed of.
31
11 Before subsection 45A(4)
32
Insert:
33
Schedule 1 Unexplained wealth
6
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
No. , 2014
Court may make costs order if restraining order ceases
1
12 Subsection 45A(4)
2
Omit "or (2)", substitute ", (2) or (3A)".
3
13 Section 179B (heading)
4
Repeal the heading, substitute:
5
179B Making a preliminary unexplained wealth order requiring a
6
person to appear
7
14 Subsection 179B(1)
8
Omit "may make an order", substitute "must make an order".
9
15 Subsection 179B(2)
10
Repeal the subsection, substitute:
11
Effect of restraining orders
12
(1A) Paragraphs (1)(b) and (c) do not apply if a
*
restraining order made
13
under section 20A in relation to the person:
14
(a) is in force; or
15
(b) has been revoked under section 44.
16
(1B) If subsection (1A) applies, the court may, in considering making an
17
order under subsection (1), take into account:
18
(a) an affidavit of an
*
authorised officer that:
19
(i) supported the application for the
*
restraining order made
20
under section 20A; and
21
(ii) met the requirements of subsection 20A(3); and
22
(b) any material that an authorised officer or
*
proceeds of crime
23
authority provided, in the proceedings under section 20A,
24
relating to the requirements of subsection 20A(3); and
25
(c) any other material that an authorised officer or proceeds of
26
crime authority provides in the proceedings under this
27
section.
28
This subsection does not limit the court's power to take other
29
material into account.
30
Unexplained wealth Schedule 1
No. , 2014
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
7
Affidavit requirements
1
(2) An application for an
*
unexplained wealth order in relation to a
2
person must be supported by an affidavit of an
*
authorised officer
3
that:
4
(a) states that the authorised officer suspects that the person's
5
*
total wealth exceeds the value of the person's
*
wealth that
6
was
*
lawfully acquired; and
7
(b) includes the grounds on which the authorised officer holds
8
that suspicion.
9
16 Before subsection 179B(3)
10
Insert:
11
Considering application without notice
12
17 At the end of section 179B
13
Add:
14
Refusal to make preliminary unexplained wealth order
15
(4) Despite subsection (1), the court may refuse to make the
16
*
preliminary unexplained wealth order if the court is satisfied that
17
there are not reasonable grounds to suspect that the person's
*
total
18
wealth exceeds by $100,000 or more the value of the person's
19
*
wealth that was
*
lawfully acquired.
20
18 Subsection 179E(1)
21
Omit "may make an order", substitute "must make an order".
22
19 Subsection 179E(4)
23
Repeal the subsection, substitute:
24
(4) To avoid doubt:
25
(a) when considering whether to make an order under
26
subsection (1), the court may have regard to information not
27
included in the application; and
28
(b) the court may make an order under subsection (1) in relation
29
to a person even if the person failed to appear as required by
30
the
*
preliminary unexplained wealth order.
31
Schedule 1 Unexplained wealth
8
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
No. , 2014
20 Subsection 179E(6)
1
Omit all the words after "may refuse to make an order under that
2
subsection", substitute:
3
if the court is satisfied that:
4
(a) the person's
*
unexplained wealth amount is less than
5
$100,000; or
6
(b) it is not in the public interest to make the order.
7
21 Paragraph 179N(2)(b)
8
Repeal the paragraph, substitute:
9
(b) provide to the person a copy of the application for the
10
unexplained wealth order, and a copy of:
11
(i) the affidavit referred to in subsection 179B(2); or
12
(ii) if, because of subsection 179B(1A), there is no such
13
affidavit--the affidavit referred to in
14
paragraph 179B(1B)(a).
15
22 After subsection 179N(2)
16
Insert:
17
(2A) The court may make an order extending the period during which
18
the things referred to in subsection (2) must be done, by a period
19
not exceeding 28 days, if:
20
(a) the
*
responsible authority applies for the order before the end
21
of the period (including that period as previously extended);
22
and
23
(b) the court is satisfied that it is appropriate to do so.
24
(2B) The period referred to in subsection (2) may be extended more than
25
once.
26
23 Subsection 179S(3)
27
Repeal the subsection, substitute:
28
(3) The court may, on application by the
*
responsible authority, make
29
a
*
restraining order under section 20A in respect of the property as
30
if:
31
(a) the property were the
*
person's property; and
32
Unexplained wealth Schedule 1
No. , 2014
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
9
(b) the requirements in paragraphs 20A(1)(c) to (g) were
1
satisfied.
2
24 Section 179SA
3
Repeal the section, substitute:
4
179SA Charge on property subject to restraining order
5
(1) If:
6
(a) an
*
unexplained wealth order is made against a person; and
7
(b) the person is the
*
suspect in relation to a
*
restraining order
8
that is or has been made against:
9
(i) the
*
person's property; or
10
(ii) another person's property in relation to which an order
11
under subsection 179S(1) is, or has been, made;
12
then, upon the making of the later of the orders, there is created, by
13
force of this section, a charge on the property to secure the
14
payment to the Commonwealth of the person's
*
unexplained
15
wealth amount.
16
(2) The charge ceases to have effect in respect of the property:
17
(a) upon the discharge of the
*
unexplained wealth order or the
18
*
restraining order by a court hearing an appeal against the
19
making of the order; or
20
(b) upon payment to the Commonwealth of the
*
unexplained
21
wealth amount in satisfaction of the unexplained wealth
22
order; or
23
(c) upon the sale or other disposition of the property:
24
(i) under an order under Division 4 of Part 4-1; or
25
(ii) by the owner of the property with the consent of the
26
court that made the unexplained wealth order; or
27
(iii) if the restraining order directed the
*
Official Trustee to
28
take custody and control of the property--by the owner
29
of the property with the consent of the Official Trustee;
30
or
31
(d) upon the sale of the property to a purchaser in good faith for
32
value who, at the time of purchase, has no notice of the
33
charge; or
34
Schedule 1 Unexplained wealth
10
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
No. , 2014
(e) upon the
*
responsible authority for the unexplained wealth
1
order or restraining order determining, by writing, that the
2
charge should cease to have effect in respect of the property;
3
whichever first occurs.
4
(3) The charge:
5
(a) is subject to every
*
encumbrance on the property (other than
6
an encumbrance in which the person referred to in
7
paragraph (1)(a) has an
*
interest) that came into existence
8
before the charge and that would, apart from this subsection,
9
have priority over the charge; and
10
(b) has priority over all other encumbrances; and
11
(c) subject to subsection (2), is not affected by any change of
12
ownership of the property.
13
(4) Subsection 73(2) of the Personal Property Securities Act 2009
14
applies to the charge (to the extent, if any, to which that Act
15
applies in relation to the property charged).
16
Note:
The effect of this subsection is that the priority between the charge
17
and a security interest in the property to which the Personal Property
18
Securities Act 2009 applies is to be determined in accordance with this
19
Act rather than the Personal Property Securities Act 2009.
20
(5) A determination made under paragraph (2)(e) is not a legislative
21
instrument.
22
179SB Charges may be registered
23
(1) If:
24
(a) a charge is created by section 179SA on property of a
25
particular kind; and
26
(b) the provisions of any law of the Commonwealth or of a State
27
or Territory provide for the registration of title to, or charges
28
over, property of that kind;
29
the
*
Official Trustee or the
*
responsible authority for the
30
*
unexplained wealth order or
*
restraining order referred to in that
31
section may cause the charge so created to be registered under the
32
provisions of that law.
33
(2) A person who purchases or otherwise acquires an
*
interest in the
34
property after the registration of the charge is taken, for the
35
Unexplained wealth Schedule 1
No. , 2014
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
11
purposes of paragraph 179SA(2)(d), to have notice of the charge at
1
the time of the purchase or acquisition.
2
(3) In this section:
3
registration of a charge on a particular kind of personal property
4
within the meaning of the Personal Property Securities Act 2009
5
includes the registration of data in relation to that kind of property
6
for the purposes of paragraph 148(c) of that Act.
7
Note:
The Personal Property Securities Act 2009 provides for the
8
registration of such data only if regulations are made for the purposes
9
of paragraph 148(c) of that Act.
10
25 Before subsection 179U(2)
11
Insert:
12
Appearing before the Committee
13
26 At the end of section 179U
14
Add:
15
Report about unexplained wealth investigations and proceedings
16
(3) The Commissioner of the Australian Federal Police must give the
17
Committee a report in respect of each financial year that contains
18
the following information:
19
(a) the number of matters investigated in the year, by each
20
*
enforcement agency, in respect of which a likely outcome
21
may, or will, be the initiation of proceedings under this Part,
22
and the basis for determining that number;
23
(b) the number and results of applications in the year for:
24
(i)
*
restraining orders under section 20A; and
25
(ii)
*
unexplained wealth orders;
26
(c) any other information of a kind prescribed by the regulations.
27
(4) The report must be given as soon as practicable after the report
28
under section 67 of the Australian Federal Police Act 1979 in
29
respect of the financial year is laid before a House of the
30
Parliament in accordance with that section.
31
Schedule 1 Unexplained wealth
12
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
No. , 2014
(5) If the Commissioner of the Australian Federal Police requests the
1
*
DPP or the Chief Executive Officer (however described) of an
2
*
enforcement agency to give the Commissioner information that
3
the Commissioner considers necessary to prepare the report, the
4
DPP or Chief Executive Officer must comply with the request.
5
27 After paragraph 227(1)(h)
6
Insert:
7
(ha) that the warrant authorises the seizure of other things found
8
at the premises in the course of the search that the executing
9
officer or a person assisting believes on reasonable grounds
10
to be
*
things relevant to unexplained wealth proceedings; and
11
28 After paragraph 228(1)(d)
12
Insert:
13
(da) to seize other things found at the premises in the course of
14
the search that the executing officer or a person assisting
15
believes on reasonable grounds to be
*
things relevant to
16
unexplained wealth proceedings; and
17
29 Subparagraph 256(1)(b)(ii)
18
Omit "and", substitute "or".
19
30 At the end of paragraph 256(1)(b)
20
Add:
21
(iii) a
*
thing relevant to unexplained wealth proceedings;
22
and
23
31 Subsection 266A(2) (after table item 2A)
24
Insert:
25
2B
Authority of a State, or a
*
self-governing Territory, that has a
function under a
*
corresponding law
of the State or Territory
Any one or more of the following
purposes:
(a) engaging in proceedings under
that
*
corresponding law;
(b) engaging in proceedings for the
forfeiture of things under a law
of that State or Territory;
(c) deciding whether to institute
Unexplained wealth Schedule 1
No. , 2014
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
13
proceedings of a kind referred to
in paragraph (a) or (b)
2C
Authority of a foreign country that
has one or more of the following
functions:
(a) investigating or prosecuting
offences against a law of the
country;
(b) identifying, locating, tracing,
investigating or confiscating
*
proceeds or
*
instruments of
crime under a law of the country
Assisting in identification, location,
tracing, investigation or confiscation
of
*
proceeds or
*
instruments of
crime, if the identification, location,
tracing, investigation or confiscation
could take place under this Act, or
under a
*
corresponding law of a
State or a
*
self-governing Territory,
if the proceeds or instruments
related to an offence against a law of
the Commonwealth, State or
Territory
32 Subsection 304(2)
1
Omit "42 to 45, 142 and 169", substitute "42 to 45A, 142, 169 and
2
179SA".
3
33 Section 338
4
Insert:
5
thing relevant to unexplained wealth proceedings means a thing
6
(including a thing in electronic form) as to which there are
7
reasonable grounds for suspecting that it may be relevant for the
8
purposes of initiating or conducting proceedings under section 20A
9
or Part 2-6.
10
34 Application of amendments
11
(1)
Section 20A of the Proceeds of Crime Act 2002, as amended by this
12
Schedule, applies in relation to a restraining order applied for under that
13
section on or after the commencement of this item, whether the
14
application relates to:
15
(a) property or wealth acquired before, on or after that
16
commencement; or
17
(b) an offence suspected of having been committed before, on or
18
after that commencement.
19
Schedule 1 Unexplained wealth
14
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
No. , 2014
(2)
Sections 45 and 45A of the Proceeds of Crime Act 2002, as amended by
1
this Schedule, apply in relation to a restraining order made on or after
2
the commencement of this item, whether the order relates to:
3
(a) property or wealth acquired before, on or after that
4
commencement; or
5
(b) an offence suspected of having been committed before, on or
6
after that commencement.
7
(3)
Sections 179B and 179E of the Proceeds of Crime Act 2002, as
8
amended by this Schedule, apply in relation to an unexplained wealth
9
order applied for on or after the commencement of this item, whether
10
the application relates to wealth acquired before, on or after that
11
commencement.
12
(4)
Section 179N of the Proceeds of Crime Act 2002, as amended by this
13
Schedule, applies in relation to a preliminary unexplained wealth order
14
made on or after the commencement of this item, whether the relevant
15
application for an unexplained wealth order:
16
(a) was made before, on or after that commencement; or
17
(b) relates to wealth acquired before, on or after that
18
commencement.
19
(5)
Section 179S of the Proceeds of Crime Act 2002, as amended by this
20
Schedule, applies in relation to an unexplained wealth order made on or
21
after the commencement of this item:
22
(a) whether the unexplained wealth order relates to wealth
23
acquired before, on or after that commencement; and
24
(b) whether the property to which the order under
25
subsection 179S(1) relates becomes subject to the effective
26
control of the person subject to the unexplained wealth order
27
before, on or after that commencement.
28
(6)
Despite the repeal of section 179SA of the Proceeds of Crime Act 2002
29
made by this Schedule, that section, as in force immediately before that
30
repeal, continues to apply in relation to an unexplained wealth order
31
made before the commencement of this item.
32
(7)
Sections 179SA and 179SB of the Proceeds of Crime Act 2002, as
33
substituted by this Schedule, apply in relation to an unexplained wealth
34
order made on or after the commencement of this item:
35
Unexplained wealth Schedule 1
No. , 2014
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
15
(a) whether the unexplained wealth order relates to wealth
1
acquired before, on or after that commencement; and
2
(b) whether the restraining order referred to in
3
subsection 179SA(1) is made before, on or after that
4
commencement.
5
(8)
Subsections 179U(3) to (5) of the Proceeds of Crime Act 2002, as added
6
by this Schedule, apply in relation to the financial year starting on or
7
after the day on which this item commences, and future financial years.
8
(9)
Sections 227, 228 and 256 of the Proceeds of Crime Act 2002, as
9
amended by this Schedule, apply in relation to a search warrant that is
10
applied for under that Act on or after the commencement of this item,
11
whether the thing relevant to unexplained wealth proceedings relates to:
12
(a) property or wealth acquired before, on or after that
13
commencement; or
14
(b) an offence suspected of having been committed before, on or
15
after that commencement.
16
(10)
Section 266A of the Proceeds of Crime Act 2002, as amended by this
17
Schedule, applies, on or after the commencement of this item, in
18
relation to information obtained before, on or after that commencement.
19
Schedule 2 Other amendments
16
Crimes Legislation Amendment (Unexplained Wealth and Other
Measures) Bill 2014
No. , 2014
Schedule 2
--
Other amendments
1
2
Proceeds of Crime Act 2002
3
1 Subparagraph 54(a)(i)
4
Omit "
*
terrorism", substitute "
*
serious".
5
2 Section 338 (subparagraph (b)(ii) of the definition of
6
indictable offence of Commonwealth concern)
7
Omit "paragraph 51(xx)", substitute "paragraph 51(v)".
8
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