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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Unexplained Wealth (Commonwealth Powers)
Bill 2021
A BILL FOR
An Act to adopt certain laws of the Commonwealth relating to unexplained
wealth and information gathering, and to refer certain matters relating to
unexplained wealth and information gathering to the Parliament of the
Commonwealth for the purposes of section 51(xxxvii) of the Constitution
of the Commonwealth, and to make related amendments to the
Criminal
Assets Confiscation Act 2005
and the
Serious
and Organised Crime (Unexplained Wealth) Act 2009
.
Contents
1Short title
4Adoption of National
Unexplained Wealth Laws
6Amendment of Commonwealth
law
7Rollback of particular express
amendments
9Termination of adoption
and amendment reference
10Termination in particular
circumstances
11Effect of termination of amendment reference
before termination of adoption 1
Part 2—Amendment of Criminal Assets
Confiscation Act 2005
2Amendment of section 209—Credits to
Victims of Crime Fund
3Amendment of section 209A—Credits to
Justice Rehabilitation Fund
4Insertion of Part 7 Division 3A
Division 3A—National cooperative scheme
on unexplained wealth
209CApplication of
Division—National Cooperative Scheme
209DNotification of
shareable proceeds
209EContribution by
foreign jurisdiction
209HPayment to contributing
non-participating State
209IPayment to
contributing CJC members
209KPayment to
Victims of Crime Fund or Justice Rehabilitation Fund
Part 3—Amendment of Serious and
Organised Crime (Unexplained Wealth) Act 2009
5Amendment of section 45—Credits to
Victims of Crime Fund
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Unexplained Wealth (Commonwealth Powers)
Act 2021.
(1) This Act comes into operation on a day to be fixed by
proclamation.
(2) Section 7(5) of the
Acts
Interpretation Act 1915
does not apply to this Act or to a provision of this Act.
In this Act, unless the contrary intention appears—
adoption 1 means the adoption under
section 4(1)(a)
;
adoption 2 means the adoption under
section 4(1)(b)
;
amendment reference means the reference under
section 5(1)
;
Commonwealth Proceeds of Crime Act means the Proceeds of
Crime Act 2002 of the Commonwealth (as in force from time to
time);
express amendment of the Commonwealth Proceeds of Crime Act,
means the direct amendment of the text of that Act (whether by the insertion,
omission, repeal, substitution or relocation of words or matter) by another
Commonwealth Act or by an instrument under a Commonwealth Act, but does not
include the enactment by a Commonwealth Act of a provision that has, or will
have, substantive effect otherwise than as part of the text of the Commonwealth
Proceeds of Crime Act;
information gathering means the production or provision of
information for the purposes of, or relevant to, the taking of action, or the
institution of proceedings, under a law of the State;
lawfully acquired includes, but is not limited to, its
meaning in the Commonwealth Proceeds of Crime Act as in force immediately before
the enactment of the Unexplained Wealth (Commonwealth Powers)
Act 2018 of New South Wales;
National Unexplained Wealth Laws 1 of the Commonwealth,
means the post-amended version 1 of this Act within the
meaning of section 14C of the Commonwealth Proceeds of Crime Act as that
section is in force immediately before this Act is assented to by the
Governor;
National Unexplained Wealth Laws 2 of the Commonwealth, means
the post-amended version 2 of this Act within the meaning of
section 14C of the Commonwealth Proceeds of Crime Act as that section is in
force immediately before this Act is assented to by the Governor;
property includes, but is not limited to, its meaning in the
Commonwealth Proceeds of Crime Act as in force immediately before the enactment
of the Unexplained Wealth (Commonwealth Powers) Act 2018 of New
South Wales;
relevant offence means an offence of a kind specified in
section 8
;
unexplained wealth means property or wealth that might not
have been lawfully acquired;
unexplained wealth provisions means—
(a) section 20A
and Part 2-6 of the Commonwealth Proceeds of Crime Act; and
(b) the other
provisions of that Act in so far as they relate to section 20A and
Part 2-6 of that Act, and
(c) instruments made under that Act for the purposes of a provision
referred to in
paragraph (a)
or
(b)
;
wealth includes, but is not limited to, its meaning in the
Commonwealth Proceeds of Crime Act as in force immediately before the enactment
of the Unexplained Wealth (Commonwealth Powers) Act 2018 of New
South Wales.
4—Adoption
of National Unexplained Wealth Laws
(1) The following laws
of the Commonwealth are adopted within the meaning of section 51(xxxvii) of
the Constitution of the Commonwealth:
(a) National
Unexplained Wealth Laws 1;
(b) National
Unexplained Wealth Laws 2.
(2) The adoption of a law under
subsection (1)
has effect for a period—
(a) beginning when this section commences; and
(b) ending at the end of the day fixed under
section 9
or
10
as the day on which the adoption is to terminate,
but no longer.
(3) The operation of a paragraph in
subsection (1)
is not affected by any other paragraph contained in that subsection or in
section 5(1)
.
(1) The following
matters are referred to the Parliament of the Commonwealth, but only to the
extent of the making of laws with respect to those matters by making express
amendments of the Commonwealth Proceeds of Crime Act:
(a) matters relating to
unexplained wealth (not including a matter excluded by
subsection (2)
);
(b) matters relating to
information gathering.
(2) The following
matters are excluded for the purposes of
subsection (1)
:
(a) the matter of including a provision in section 20A or
Part 2-6 of the Commonwealth Proceeds of Crime Act that requires a person
to pay an amount otherwise than by order of a court;
(b) the matter of including a provision in section 20A or
Part 2-6 of the Commonwealth Proceeds of Crime Act that requires or permits
property to be restrained, forfeited or seized otherwise than by order of a
court.
(3) The reference of a matter under
subsection (1)
has effect only—
(a) if and to the extent that the matter is not included in the
legislative powers of the Parliament of the Commonwealth (otherwise than by a
reference for the purposes of section 51(xxxvii) of the Constitution of
the Commonwealth); and
(b) if and to the extent that the matter is included in the legislative
powers of the Parliament of the State.
(4) Despite any other provision of this section, a reference under
subsection (1)
has effect for a period—
(a) beginning when this section commences; and
(b) ending at the beginning of the day fixed under this Act as the day on
which the reference is to terminate,
but no longer.
(5) The operation of a paragraph in
subsection (1)
is not affected by any paragraph contained in
section 4(1)
.
6—Amendment
of Commonwealth law
For the avoidance of doubt, it is the intention of the Parliament of the
State that—
(a) the Commonwealth Proceeds of Crime Act may be expressly amended, or
have its operation otherwise affected, at any time by provisions of Commonwealth
Acts the operation of which is based on legislative powers that the Parliament
of the Commonwealth has apart from a reference of any matters for the purposes
of section 51(xxxvii) of the Constitution of the Commonwealth;
and
(b) the Commonwealth Proceeds of Crime Act may have its operation
affected, otherwise than by express amendment, at any time by provisions of
instruments made or issued under that Act.
7—Rollback
of particular express amendments
(1) For the purposes of section 14G of the Commonwealth Proceeds of
Crime Act, the Governor may, by proclamation, declare that an express amendment
of that Act (other than Subdivision B of Division 2 of Part 1-4)
is not to apply to proceedings covered by subsection (3), (4) or (5)
of that section.
Note—
To be effective for the purposes of section 14G of the Commonwealth
Proceeds of Crime Act, the proclamation must come into force in the period of
6 months beginning on the day the amendment is enacted. On the coming into
force of the proclamation, that Act applies to the proceedings as if the
amendment had not been enacted.
(2) For the purposes of section 14J of the Commonwealth Proceeds of
Crime Act, the Governor may, by proclamation, declare that an express amendment
of that Act (other than Subdivision B of Division 2 of Part 1-4)
is not to apply to:
(a) an application
covered by subsection (3) of that section; or
(b) an order made as a result of an application referred to in
paragraph (a)
; or
(c) a notice covered by subsection (4) of that section.
Note—
To be effective for the purposes of section 14J of the Commonwealth
Proceeds of Crime Act, the proclamation must come into force in the period of
6 months beginning on the day the express amendment is enacted. On the
coming into force of the proclamation, that Act applies to the application,
order and notice as if the amendment had not been enacted.
For the purpose of the Commonwealth Proceeds of Crime Act, in so far as it
relates to an offence of a kind that is specified by this Act, the following
offences are specified:
(a) an indictable offence against a law of the State;
(b) an offence against—
(i) section 68(3) of the
Criminal
Law Consolidation Act 1935
; or
(ii) section 52, 53, 72 or 74 of the
Fisheries
Management Act 2007
; or
(iii) section 99 of the
Liquor
Licensing Act 1997
; or
(iv) a provision of the
Lottery
and Gaming Act 1936
; or
(v) section 47, 48, 48A, 51 or 60 of the
National
Parks and Wildlife Act 1972
; or
(vi) section 28(1)(a) or 41 of the
Summary
Offences Act 1953
.
9—Termination
of adoption and amendment reference
(1) The Governor
may, at any time, by proclamation, fix a day as the day on
which—
(a) adoption 1 and
the amendment reference are to terminate; or
(b) adoption 2 is to terminate; or
(c) the amendment
reference is to terminate; or
(d) adoption 1 is
to terminate (if the amendment reference has been previously
terminated).
(2) The Governor may,
by proclamation, revoke a proclamation published under
subsection (1)
.
(3) A revoking proclamation under
subsection (2)
has effect only if published before the day fixed under
subsection (1)
.
(4) If a revoking proclamation has effect, the revoked proclamation is
taken, for the purposes of
sections 4
and
5
, never to have been published but the revocation does not prevent
publication of a further proclamation under
subsection (1)
.
10—Termination
in particular circumstances
(1) The Governor may,
by proclamation, fix a day as the day on which adoption 1 and the amendment
reference are to terminate if the Commonwealth Parliament enacts an express
amendment of the Commonwealth Proceeds of Crime Act that, in the opinion of the
Governor, is inconsistent with the fundamental attributes of the unexplained
wealth provisions.
(2) Without limiting
subsection (1)
, an express amendment of the Commonwealth Proceeds of Crime Act that is
inconsistent with the fundamental attributes of the unexplained wealth
provisions includes an amendment to section 20A or Part 2-6 of that
Act that has the effect of allowing a restraining order, payment order, seizure
order or forfeiture order to be made under those provisions otherwise than by
order of a court.
(3) For the purposes of
section 14F of the Commonwealth Proceeds of Crime Act, the Governor may, by
proclamation, fix a day as the day on which both adoption 1 and the
amendment reference are to terminate, or the amendment reference only is to
terminate, if the Commonwealth Parliament enacts an express amendment of
section 14G or 14J (about rollback), or Division 2 of
Part 4-3 (about sharing proceeds), of the Commonwealth Proceeds of Crime
Act.
(4) The Governor may,
by proclamation, revoke a proclamation published under
subsection (1)
or
(3)
.
(5) A revoking proclamation under
subsection (4)
has effect only if published before the day fixed under
subsection (1)
or
(3)
.
(6) The revocation of a proclamation published under
subsection (1)
or
(3)
does not prevent publication of a further proclamation under that
subsection.
(7) A proclamation under
subsection (1)
or
(3)
has effect despite any earlier proclamation published under
section 9(1)
.
11—Effect
of termination of amendment reference before termination of
adoption 1
(1) If the amendment
reference is terminated but adoption 1 is not terminated, the termination
of the amendment reference does not affect—
(a) laws that were made
under the amendment reference (but not repealed) before that termination
(whether or not they have come into operation before that termination);
or
(b) the continued
operation in this State of the Commonwealth Proceeds of Crime Act as in
operation immediately before that termination or as subsequently amended or
affected by—
(i) laws referred to in
paragraph (a)
that come into operation after that termination; or
(ii) provisions referred to in
section 6
.
(2) Accordingly, the amendment reference continues to have effect for the
purposes of
subsection (1)
unless adoption 1 is terminated.
(3)
Subsection (1)
does not apply to or in relation to an amendment of the Commonwealth
Proceeds of Crime Act that is excluded from the operation of this section by the
proclamation that terminates the amendment reference.
(4) For the purposes of
subsection (1)
—
(a) the laws referred to in
subsection (1)(a)
include instruments under the Commonwealth Proceeds of Crime Act;
and
(b) the reference in
subsection (1)(b)
to the Commonwealth Proceeds of Crime Act as in operation immediately
before the termination of the amendment reference includes that legislation as
affected by instruments under that Act that have come into operation before that
time.
(1) The Governor may
make regulations, not inconsistent with this Act, for or with respect to any
matter that by this Act is required or permitted to be prescribed or that is
necessary or convenient to be prescribed for carrying out or giving effect to
this Act.
(2) Without limiting
subsection (1)
, the regulations may deal with matters of a transitional, application or
savings nature relating to an offence becoming, or ceasing to be, a relevant
offence.
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Amendment of Criminal Assets
Confiscation Act 2005
2—Amendment
of section 209—Credits to Victims of Crime Fund
(1) Section 209(1)—after "Subject to" insert:
Division 3A,
(2) Section 209(4), definition of equitable sharing
program—after paragraph (b) insert:
but does not include the national cooperative scheme (within the meaning of
section 209B(1));
3—Amendment
of section 209A—Credits to Justice Rehabilitation
Fund
Section 209A(4)—after "Subject to" insert:
Division 3A and
4—Insertion
of Part 7 Division 3A
Part 7—after Division 3 insert:
Division 3A—National cooperative scheme on
unexplained wealth
209B—Interpretation
(1) In this Division, unless the contrary intention
appears—
CJC subcommittee—see
section 209G
;
Cooperating Jurisdiction Committee means the Cooperating
Jurisdiction Committee established under the NCSUW agreement;
cooperating State has the same meaning as in section 14F
of the Proceeds of Crime Act 2002 of the Commonwealth (as in force from
time to time);
corresponding proceeds has the same meaning as in the NCSUW
agreement;
decision-making period means—
(a) the period
specified in the NCSUW agreement as being the decision-making period for the
purposes of the national cooperative scheme; or
(b) if
paragraph (a)
does not apply—the period prescribed by the regulations as being the
decision-making period for the purposes of the national cooperative
scheme;
foreign jurisdiction means a jurisdiction outside
Australia;
forfeiture proceeds means proceeds arising from a
confiscation, forfeiture or payment under a relevant law that are paid or
payable to this State;
national cooperative scheme means the National Cooperative
Scheme on Unexplained Wealth established by the NCSUW agreement;
NSC threshold has the same meaning as in the NCSUW
agreement;
NCSUW agreement means the Intergovernmental Agreement on the
National Cooperative Scheme on Unexplained Wealth (as in force from time to
time);
net amount—see
section 209F(2)
;
non-participating State has the same meaning as in
section 338 of the Proceeds of Crime Act 2002 of the Commonwealth
(as in force from time to time);
participating State has the same meaning as in
section 14C of the Proceeds of Crime Act 2002 of the Commonwealth
(as in force from time to time);
relevant law—each of the following laws is a relevant
law:
(a) section 47 (forfeiture orders);
(b) section 56A (deemed forfeiture orders);
(c) section 72(1);
(d) section 73(f);
(e) section 74;
(f) section 81(1)(c);
(g) section 82(f);
(h) section 95 (pecuniary penalty orders);
(i) section 111 (literary proceeds orders);
(j) section 206;
(k) section 9 of the
Serious
and Organised Crime (Unexplained Wealth) Act 2009
(unexplained wealth orders);
(l) a prescribed law;
shareable—forfeiture proceeds are
shareable if—
(a) the proceeds are corresponding proceeds of this State; and
(b) the amount of the proceeds exceeds the NCS threshold (whether or not
the full amount is realised).
(2) The NCSUW agreement and the regulations may specify that the
decision-making period starts or ends at a time before an amount
is paid to the Victims of Crime Fund.
(3) Decisions may be made under this Division in relation to an amount
before the amount is paid to the Victims of Crime Fund or becomes the net
amount.
209C—Application of Division—National
Cooperative Scheme
This Division—
(a) applies in respect of forfeiture proceeds of the State that are
shareable under the national cooperative scheme; and
(b) sets out the process for sharing with the Commonwealth or another
State or Territory any forfeiture proceeds of the State that are
shareable.
209D—Notification of shareable
proceeds
(1) The Minister
must notify the Cooperating Jurisdiction Committee by notice in writing within
60 days of a final order, negotiated settlement or other forfeiture under a
relevant law relating to forfeiture proceeds that are shareable under the
national cooperative scheme.
(2) A notification under
subsection (1)
must include sufficient information to enable a member jurisdiction of the
Cooperating Jurisdiction Committee to determine if it has made a contribution
for the purposes of the national cooperative scheme (within the meaning of the
NCSUW agreement) in relation to the forfeiture proceeds the subject of the
notification.
209E—Contribution by foreign
jurisdiction
If the Minister decides that—
(a) a foreign jurisdiction has made a contribution in relation to the
recovery of shareable forfeiture proceeds; and
(b) it is appropriate that a specified amount of the proceeds be payable
to the foreign jurisdiction,
then the specified amount is payable to the foreign jurisdiction.
209F—Net amount
(1) Forfeiture proceeds
that are shareable with the Commonwealth or another State or Territory under the
national cooperative scheme are to be reduced by any amount that is payable
under—
(a) an order of a court under this Act; and
(b) section 209E.
(2) The amount left
after any reduction is made under
subsection (1)
is the net amount.
209G—CJC subcommittee
(1) The Cooperating Jurisdiction Committee must establish a subcommittee
(the CJC subcommittee) for the purposes of deciding matters under
this Division in relation to the net amount.
(2) The CJC subcommittee must consist of the following members of the
Cooperating Jurisdiction Committee:
(a) this State; and
(b) any other member of the Cooperating Jurisdiction Committee that is
found, by unanimous decision of the Cooperating Jurisdiction Committee, to have
made a contribution (within the meaning of the NCSUW agreement) in relation to
the recovery of the forfeiture proceeds comprising the net amount.
209H—Payment to contributing non-participating
State
If, in the decision-making period, the CJC subcommittee makes a unanimous
decision that—
(a) a non-participating State (other than a cooperating State) made a
contribution (within the meaning of the NCSUW agreement) in relation to the
recovery of the forfeiture proceeds comprising the net amount; and
(b) it is appropriate that a specified proportion of the net amount be
payable to that State,
then the specified proportion of the net amount is payable to that State
under the national cooperative scheme.
209I—Payment to contributing CJC
members
(1) Subject to
subsection (2)
, any part of the net amount that remains after the application of
section 209H
is to be divided into equal proportions between this State and each of the
other jurisdictions represented on the CJC subcommittee and the resulting
proportion for each of those other jurisdictions is payable to the jurisdiction
under the national cooperative scheme.
(2) If the CJC
subcommittee makes a unanimous decision in the decision-making period
that—
(a) it is inappropriate for the division referred to in
subsection (1)
to apply; and
(b) a specified proportion, of any part of the net amount that remains
after the application of
section 209H
, be payable to each of the jurisdictions represented on the subcommittee
(other than this State),
then the specified proportion for each of those jurisdictions, of any part
of the net amount that remains after the application of
section 209H
, is payable to the jurisdiction under the national cooperative
scheme.
209J—Payment period
If an amount is payable to the Commonwealth or another State or Territory
under this section, then the Attorney-General must cause the amount to be paid
to the Commonwealth or the other State or Territory in the period that
is—
(a) the period
specified in the NCSUW agreement as being the payment period for the purposes of
the national cooperative scheme; or
(b) if
paragraph (a)
does not apply—the period prescribed by the regulations as being the
payment period for the purposes of the national cooperative scheme.
209K—Payment to Victims of Crime Fund or Justice
Rehabilitation Fund
(1) Subject to
subsection (2)
, any amount of shareable forfeiture proceeds remaining after the
application of this Division (being this State's share of the shareable
forfeiture proceeds) must be paid into the Victims of Crime Fund.
(2) Shareable
forfeiture proceeds of a prescribed drug offender remaining after the
application of this Division (being this State's share of the shareable
forfeiture proceeds of the prescribed drug offender) must be paid into the
Justice Rehabilitation Fund.
(3) Any amount paid to this State by the Commonwealth, another State or a
Territory under the national cooperative scheme must be paid into the Victims of
Crime Fund.
Part 3—Amendment of Serious and Organised
Crime (Unexplained Wealth) Act 2009
5—Amendment
of section 45—Credits to Victims of Crime Fund
(1) Section 45—delete "Money" and substitute:
Subject to subsection (2), money
(2) Section 45—after its present contents as amended by this section
(now to be designated as subsection (1)) insert:
(2) Money recovered by the Crown under an unexplained wealth order that is
shareable forfeiture proceeds within the meaning of Division 3A of
Part 7 of the
Criminal
Assets Confiscation Act 2005
is to be dealt with in accordance with that Division.