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This is a Bill, not an Act. For current law, see the Acts databases.
Criminal Assets Recovery Amendment
(Unexplained Wealth) Bill 2010
No , 2010
A Bill for
An Act to amend the Criminal Assets Recovery Act 1990 with respect to the recovery
of unexplained wealth; and for other purposes.
Clause 1 Criminal Assets Recovery Amendment (Unexplained Wealth) Bill 2010
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Criminal Assets Recovery Amendment (Unexplained 3
Wealth) Act 2010. 4
2 Commencement 5
This Act commences on the date of assent to this Act. 6
Page 2
Criminal Assets Recovery Amendment (Unexplained Wealth) Bill 2010
Amendment of Criminal Assets Recovery Act 1990 No 23 Schedule 1
Schedule 1 Amendment of Criminal Assets 1
Recovery Act 1990 No 23 2
[1] Section 3 Principal objects 3
Omit section 3 (b). Insert instead: 4
(a1) to enable the current and past wealth of a person to be 5
recovered as a debt due to the Crown if the Supreme Court 6
finds there is a reasonable suspicion that the person has 7
engaged in a serious crime related activity (or has acquired 8
any of the proceeds of any such activity of another person) 9
unless the person can establish that the wealth was 10
lawfully acquired, and 11
(b) to enable the proceeds of illegal activities of a person to be 12
recovered as a debt due to the Crown if the Supreme Court 13
finds it more probable than not the person has engaged in 14
any serious crime related activity in the previous 6 years or 15
acquired proceeds of the illegal activities of such a person, 16
and 17
[2] Section 4 Definitions 18
Omit "or a proceeds assessment order" from the definition of confiscation 19
order in section 4 (1). 20
Insert instead ", proceeds assessment order or unexplained wealth order". 21
[3] The whole Act (including the defined expression "interstate proceeds 22
assessment order" in section 4 (1)) 23
Omit "interstate proceeds assessment order" wherever occurring. 24
Insert instead "interstate proceeds assessment or unexplained wealth order". 25
[4] Section 4 (1), definition of "unexplained wealth order" 26
Insert in alphabetical order: 27
unexplained wealth order means an order made under 28
section 28A and in force. 29
[5] Sections 9 (5) (c), 10B (4) (a), 10D (1), 16A (2) (c), 20 (1), 22 (8), 29, 30, 31, 30
31A (1) (a), 31B (1) (a) and (8), 31D (4), 61 (1) and 62 (b) 31
Omit "proceeds assessment order" wherever occurring. 32
Insert instead "proceeds assessment order or unexplained wealth order". 33
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Criminal Assets Recovery Amendment (Unexplained Wealth) Bill 2010
Schedule 1 Amendment of Criminal Assets Recovery Act 1990 No 23
[6] Section 10A Proceedings for restraining orders 1
Omit section 10A (1). Insert instead: 2
(1) Application for order 3
The Commission may apply to the Supreme Court, ex parte, for 4
a restraining order in respect of specified interests, a specified 5
class of interests, or all the interests, in property of any person 6
(including interests acquired after the making of the order). 7
[7] Section 10A (5) (a) and (b) 8
Omit the paragraphs. Insert instead: 9
(a) in the case of an application in respect of an interest 10
referred to in subsection (1)--the authorised officer 11
suspects that: 12
(i) the person whose interest is the subject of the 13
application has engaged in a serious crime related 14
activity or serious crime related activities, or 15
(ii) the person whose interest is the subject of the 16
application has acquired serious crime derived 17
property because of any such activity of the person 18
or of another person, or 19
(iii) the interest is serious crime derived property, 20
and stating the grounds on which that suspicion is based, 21
and 22
[8] Part 3, Division 2, heading 23
Omit "Proceeds assessment orders". 24
Insert instead "Proceeds assessment orders and unexplained wealth 25
orders". 26
[9] Section 26A 27
Insert before section 27: 28
26A Application for proceeds assessment or unexplained wealth order 29
(1) The Commission may apply to the Supreme Court under 30
section 27 for a proceeds assessment order or under section 28A 31
for an unexplained wealth order (or for both). 32
(2) If the Commission applies for both orders against a person, the 33
Supreme Court cannot make both orders, but is to make the order 34
that requires payment of the greater amount. 35
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Criminal Assets Recovery Amendment (Unexplained Wealth) Bill 2010
Amendment of Criminal Assets Recovery Act 1990 No 23 Schedule 1
(3) If the Commission applies for only one of the orders, it may 1
before the application is determined extend the application so that 2
it includes an application for the other order. 3
[10] Section 27 Making of proceeds assessment order 4
Omit "person who is 18 years or older" from section 27 (2A). 5
Insert instead "person (other than an individual who is under the age of 6
18 years)". 7
[11] Section 27 (2B), (2C) and (5)-(12) 8
Omit the subsections. 9
[12] Section 28 Assessment for proceeds assessment order--illegal activity 10
proceeds 11
Omit "an assessment under section 27" from section 28 (1). 12
Insert instead "an assessment for a proceeds assessment order under 13
section 27". 14
[13] Section 28 (6) 15
Omit the subsection. 16
[14] Sections 28A, 28B and 28C 17
Insert after section 28: 18
28A Making of unexplained wealth order 19
(1) The Commission may apply to the Supreme Court for an 20
unexplained wealth order requiring a person to pay to the 21
Treasurer an amount assessed by the Court as the value of the 22
unexplained wealth of the person. 23
(2) The Supreme Court must make an unexplained wealth order if 24
the Court finds that there is a reasonable suspicion that the person 25
against whom the order is sought has, at any time before the 26
making of the application for the order: 27
(a) engaged in a serious crime related activity or serious crime 28
related activities, or 29
(b) acquired serious crime derived property from any serious 30
crime related activity of another person (whether or not the 31
person against whom the order is made knew or suspected 32
that the property was derived from illegal activities). 33
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Criminal Assets Recovery Amendment (Unexplained Wealth) Bill 2010
Schedule 1 Amendment of Criminal Assets Recovery Act 1990 No 23
(3) A finding under this section need not be based on a reasonable 1
suspicion as to the commission of a particular offence and can be 2
based on a reasonable suspicion that some offence or other 3
constituting a serious crime related activity was committed. 4
(4) The Supreme Court may refuse to make an unexplained wealth 5
order, or may reduce the amount that would otherwise be payable 6
as assessed under section 28B, if it thinks it is in the public 7
interest to do so. 8
(5) Engagement in a serious crime related activity or the acquisition 9
of serious crime derived property referred to in subsection (2) 10
extends to engagement in an activity or the acquisition of 11
property before the commencement of this section. 12
28B Assessment for unexplained wealth order--unexplained wealth 13
(1) This section applies for the purpose of making an assessment for 14
an unexplained wealth order of the unexplained wealth of a 15
person against whom the order is made. 16
(2) The unexplained wealth of a person is the whole or any part of 17
the current or previous wealth of the person that the Supreme 18
Court is not satisfied on the balance of probabilities is not or was 19
not illegally acquired property or the proceeds of an illegal 20
activity. 21
(3) The burden of proof in proceedings against a person for an 22
unexplained wealth order is on the person to prove that the 23
person's current or previous wealth is not or was not illegally 24
acquired property or the proceeds of an illegal activity. 25
(4) The current or previous wealth of a person is the amount that is 26
the sum of the values of the following: 27
(a) all interests in property of the person, 28
(b) all interests in property that are subject to the effective 29
control of the person, 30
(c) all interests in property that the person has, at any time, 31
expended, consumed or otherwise disposed of (by gift, sale 32
or any other means), 33
(d) any service, advantage or benefit provided at any time for 34
the person or, at the person's request or direction, to 35
another person, 36
whether acquired, disposed of or provided before or after the 37
commencement of this section and whether within or outside 38
New South Wales. 39
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Criminal Assets Recovery Amendment (Unexplained Wealth) Bill 2010
Amendment of Criminal Assets Recovery Act 1990 No 23 Schedule 1
(5) In assessing the unexplained wealth of a person, the Supreme 1
Court is not required to consider any current or previous wealth 2
of which the Commission has not provided evidence. 3
(6) The value of any thing included as current or previous wealth is: 4
(a) in the case of wealth that has been expended, consumed or 5
otherwise disposed of--the greater of: 6
(i) the value at the time the wealth was acquired, and 7
(ii) the value immediately before the wealth was 8
expended, consumed or otherwise disposed of, or 9
(b) in any other case--the greater of: 10
(i) the value at the time the wealth was acquired, and 11
(ii) the value at the time the application for the 12
unexplained wealth order was made. 13
28C General provisions applying to proceeds assessment and 14
unexplained wealth orders 15
(1) In assessing the amount payable under an unexplained wealth 16
order, the Supreme Court must deduct the following (but only if 17
those amounts would otherwise be included in the assessment of 18
the amount payable under the order): 19
(a) the value of any interests in property of the defendant 20
forfeited under another confiscation order under this Act or 21
an interstate assets forfeiture order, 22
(b) any amounts paid or payable by the defendant under any 23
previous proceeds assessment order or unexplained wealth 24
order under this Act or any interstate proceeds assessment 25
or unexplained wealth order, 26
(c) the value of any interests in property of the defendant 27
forfeited under a confiscation order or interstate forfeiture 28
order within the meaning of the Confiscation of Proceeds 29
of Crime Act 1989, 30
(d) any amounts paid or payable by the defendant under any 31
drug proceeds order, pecuniary penalty order or interstate 32
pecuniary penalty order within the meaning of the 33
Confiscation of Proceeds of Crime Act 1989. 34
(2) The Supreme Court may not make a proceeds assessment order 35
or unexplained wealth order in an application that relates wholly 36
to external serious crime related activity, unless it is satisfied that 37
no action has been taken under a law of the Commonwealth or 38
Page 7
Criminal Assets Recovery Amendment (Unexplained Wealth) Bill 2010
Schedule 1 Amendment of Criminal Assets Recovery Act 1990 No 23
any other place outside this State (including outside Australia) in 1
relation to the proceeds of the external serious crime related 2
activity. 3
(3) For the purposes of subsection (2), an affidavit by an authorised 4
officer that includes a statement that the officer has made due 5
inquiry and is satisfied that no action has been taken under a law 6
of the Commonwealth or any place outside this State (including 7
outside Australia) against any interests in property in relation to 8
the proceeds of the external serious crime related activity is 9
proof, in the absence of evidence to the contrary, of the matters 10
contained in the affidavit. 11
(4) The quashing or setting aside of a conviction for a serious crime 12
related activity does not affect the validity of a proceeds 13
assessment order or unexplained wealth order. 14
(5) The making of a proceeds assessment order or unexplained 15
wealth order does not prevent the making under Division 1 of an 16
assets forfeiture order based on the serious crime related activity, 17
or on all or any of the serious crime related activities, in relation 18
to which the proceeds assessment order or unexplained wealth 19
order is made. 20
(6) The amount a person is required to pay under a proceeds 21
assessment order or unexplained wealth order is a debt payable 22
by the person to the Crown on the making of the order and is 23
recoverable as such. 24
(7) If a proceeds assessment order or unexplained wealth order is 25
made against a dead person, subsection (6) has effect before final 26
distribution of the estate as if the person had died the day after the 27
making of the order. 28
(8) The net amount recovered under a proceeds assessment order or 29
unexplained wealth order is to be paid to the Treasurer and 30
credited to the Proceeds Account. 31
(9) Notice of an application for a proceeds assessment order or 32
unexplained wealth order is to be given to the person against 33
whom the order is sought and any other person required by the 34
regulations to be given notice. 35
(10) The absence of a person entitled to be given notice of a proceeds 36
assessment order or unexplained wealth order does not prevent 37
the Supreme Court from making the order. 38
(11) The Supreme Court may, when it makes a proceeds assessment 39
order or unexplained wealth order or at any later time, make any 40
ancillary orders that the Court considers appropriate. 41
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Criminal Assets Recovery Amendment (Unexplained Wealth) Bill 2010
Amendment of Criminal Assets Recovery Act 1990 No 23 Schedule 1
(12) Despite any rule of law, or any practice, relating to hearsay 1
evidence, the Supreme Court may, for the purposes of an 2
application for a proceeds assessment order or unexplained 3
wealth order, receive evidence of the opinion of: 4
(a) a member of the NSW Police Force, or 5
(b) a member of the Australian Federal Police, or 6
(c) an officer of Customs within the meaning of the Customs 7
Act 1901 of the Commonwealth, or 8
(d) a member or officer of the Commission, 9
who is experienced in the investigation of illegal activities 10
involving plants or drugs, being an opinion with respect to: 11
(e) the amount that was the market value at a particular time 12
of a particular kind of plant or drug, or 13
(f) the amount, or range of amounts, ordinarily paid at a 14
particular time for the doing of anything in relation to a 15
particular kind of plant or drug. 16
[15] Section 32 Establishment and use of Proceeds Account 17
Omit section 32 (3) (c). Insert instead: 18
(c) to the credit of the Victims Compensation Fund 19
established under the Victims Support and Rehabilitation 20
Act 1996--half of the proceeds of proceeds assessment 21
orders or unexplained wealth orders paid to the Proceeds 22
Account (calculated after deducting from the proceeds any 23
amounts payable under paragraph (b) or agreed to be paid 24
to the Commonwealth, another State or a Territory or an 25
authority of the Commonwealth, another State or a 26
Territory), and 27
[16] Schedule 1 Savings and transitional provisions 28
Insert at the end of clause 1 (1): 29
Criminal Assets Recovery Amendment (Unexplained Wealth) 30
Act 2010 31
Page 9
Criminal Assets Recovery Amendment (Unexplained Wealth) Bill 2010
Schedule 1 Amendment of Criminal Assets Recovery Act 1990 No 23
[17] Schedule 1, Part 5 1
Insert after Part 4: 2
Part 5 Criminal Assets Recovery Amendment 3
(Unexplained Wealth) Act 2010 4
25 Existing proceeds assessment orders and applications for 5
proceeds assessment orders 6
(1) This Act, as in force before the commencement of the Criminal 7
Assets Recovery Amendment (Unexplained Wealth) Act 2010, 8
continues to apply to an application for a restraining order or a 9
proceeds assessment order that was made, but not finally 10
determined, before that commencement. 11
(2) Despite subclause (1), the proceeds of any proceeds assessment 12
order made before that commencement that are received after that 13
commencement are to be dealt with under section 32 as in force 14
after that commencement. 15
Page 10
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