Victorian Numbered Acts Victorian Numbered ActsAfter Part 4 of the Confiscation Act 1997 insert —
(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.
(2) If a provision of this Act confers a power to apply for an unexplained wealth restraining order in respect of property in which a person has an interest, the application may be made in respect of one or more of the following—
(a) specified property of the person;
(b) all the property of the person, including property acquired after the making of the order;
(c) specified property of the person and all other property of the person, including property acquired after the making of the order;
(d) all the property of the person, including property acquired after the making of the order, other than specified property;
(e) specified property of another person.
(3) If the court, when making an unexplained wealth restraining order, considers that the circumstances so require, the order may direct a trustee specified in the order to take control of some or all of the property specified in the order.
(4) An unexplained wealth restraining order may, at the time it is made or at a later time, provide for meeting—
(a) the reasonable living expenses (including the reasonable living expenses of any dependants); and
(b) the reasonable business expenses—
of any person to whose property the order applies if the court that makes or made the order is satisfied that these expenses cannot be met from unrestrained property or income of the person.
(5) The court, in making an unexplained wealth restraining order, must not provide for the payment of legal expenses in respect of any legal proceeding, whether criminal or civil.
(6) Subject to subsections (4) and (5), an unexplained wealth restraining order may be made subject to any conditions that the court making the order thinks fit.
(7) The court may refuse to make an unexplained wealth restraining order if the DPP or another person or body on behalf of the State refuses or fails to give to the court any undertakings that the court considers appropriate concerning the payment of damages or costs in relation to the making and operation of the order.
(1) An unexplained wealth restraining order may be made to preserve property or an interest in property in order that the property or interest will be available to satisfy forfeiture of property that may occur under Division 2.
(2) If a court makes an unexplained wealth restraining order in respect of property or an interest in property, the unexplained wealth restraining order must state that the property or interest is restrained to preserve property or an interest in property so that the property or interest will be available for unexplained wealth forfeiture.
(1) In addition to being subject to an unexplained wealth restraining order, property or an interest in property may be subject to either or both of the following—
(a) a restraining order under Part 2;
(b) a civil forfeiture restraining order.
(2) If an unexplained wealth restraining order and a restraining order under Part 2 made for the purposes of section 15(1)(a), (b) or (c) or a civil forfeiture restraining order (or both) apply to the same property or interest in property, the unexplained wealth restraining order, to the extent that it applies to that property or interest in property, remains in operation until the earliest of the following—
(a) the property being able to be disposed of in accordance with section 44(2) because automatic forfeiture of the property has occurred under section 35 in relation to a Schedule 2 offence;
(b) the property being able to be disposed of in accordance with section 44(2) because the property has been forfeited under section 36GA on the owner of the property being declared to be a serious drug offender;
(c) the property being able to be disposed of in accordance with section 44(2) because a forfeiture order under Division 1 of Part 3 has been made in relation to the property;
(d) the property being able to be disposed of in accordance with section 44(2) because a civil forfeiture order under Division 2 of Part 4 has been made in relation to the property;
(e) the unexplained wealth restraining order being set aside in whole or in relation to the property or interest in property under section 40X;
(f) the property or interest in property being excluded from the operation of the unexplained wealth restraining order by an unexplained wealth forfeiture exclusion 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) a person has engaged in serious criminal activity; and
(b) that person has an interest in the property; and
(c) in the case of property located outside Victoria—that serious criminal activity occurred within Victoria; and
(d) 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—
(a) the property was not lawfully acquired; and
(b) 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—
(a) setting out any relevant matters; and
(b) 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
(c) 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
(d) 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—
(a) property that is subject to the effective control of the person; and
(b) 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.
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(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.
Example
Separate applications under subsections (1) and (2) may be made in respect of the same property or the same interest in property.
(9) An application for an unexplained wealth restraining order in relation to property or an interest in property made on the basis of serious criminal activity does not preclude an application for a further unexplained wealth restraining order being made in relation to other property or another interest in property on the basis of the same serious criminal activity.
(1) For the purposes of this Part—
(a) property acquired by a person for sufficient consideration that has otherwise been lawfully acquired is taken to have been lawfully acquired only if the consideration given for the property by the person was lawfully acquired;
(b) property acquired by a person
other than for sufficient consideration or on the distribution of the estate
of a deceased person is taken to have been lawfully acquired only if the
person from whom it was acquired or the deceased person (as the case may be)
lawfully acquired the property;
s. 16
Note
The effect of paragraph (b) is that if, for example, the donor of property given as a gift to the person received the property as a gift from someone else who acquired the property unlawfully, the property remains property that has not been lawfully acquired.
(c) property acquired by a person as a prize or as the proceeds of any form of gambling is taken to have been lawfully acquired only if any money or other item of value used by the person for the purposes of entering the prize draw or for the purposes of the gambling (as the case may be) was lawfully acquired;
(d) property acquired by a person in the form of investment income is taken to have been lawfully acquired only if the property from which the investment income was derived was lawfully acquired;
(e) property derived by a person from salary or wages or from payment under a contract for services is taken to have been lawfully acquired only if the salary or wages or the payment for the services (as the case may be)—
(i) did not exceed the reasonable market rate applying at the time for the labour or services provided; or
(ii) were lawfully acquired by the person from whom they were received;
(f) property acquired by a person that is derived property is not property lawfully acquired unless—
(i) the property was acquired for sufficient consideration; and
(ii) the person acquired the property without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was derived property.
(2) Subsection (1) does not limit the criteria for determining for the purposes of this Part whether or not property has been lawfully acquired.
(3) Despite subsection (1)(f), a person who acquires the property from the sale or disposal of the property under this Act lawfully acquires the property unless any consideration paid for the property has not been lawfully acquired.
(1) On an application under section 40F, if the court, having regard to the matters referred to in subsection (2), is satisfied that the circumstances of the case justify the giving of notice to a person affected, the court may direct an applicant for an unexplained wealth restraining order to give notice of the application for that order to any person whom the court has reason to believe has an interest in the property that is the subject of the application.
(2) In determining whether the circumstances of the case justify the giving of notice, the court must have regard to—
(a) the aim of preserving the property that is the subject of the application so as to ensure its availability for the purpose of unexplained wealth forfeiture; and
(b) any jeopardy to an investigation by a law enforcement agency into criminal activity that could result from the giving of notice; and
(c) any risk to the safety or security of a person, including a potential witness in any criminal proceeding, that could result from the giving of notice; and
(d) the provision made by this Act to enable a person claiming an interest in property the subject of an unexplained wealth restraining order to apply for a section 40S exclusion order to protect that interest from the operation of the unexplained wealth restraining order; and
(e) the limited duration of an unexplained wealth restraining order; and
(f) the submissions, if any, made by the applicant in relation to the giving of notice.
(3) In determining whether to direct an applicant to give notice of an application for an unexplained wealth restraining order, the court may have regard to any other matter that the court considers relevant.
(4) If the court requires notice of an application for an unexplained wealth restraining order to be given under subsection (1) and the application is withdrawn because of that requirement, the court must not award costs in relation to the application.
(5) If the court does not require notice of an
application for an unexplained wealth restraining order to be given under
subsection (1), it may hear and determine the application in the absence of
any person who has an interest in the property that is the subject of the
application.
s. 16
(6) Any person notified under subsection (1) is entitled to appear and to give evidence at the hearing of the application but the absence of that person does not prevent the court from making an unexplained wealth restraining order.
(7) The court may—
(a) order that the whole or any part of the proceeding be heard in closed court; or
(b) order that only persons or classes of persons specified by it may be present during the whole or any part of the proceeding; or
(c) make an order prohibiting the publication of a report of the whole or any part of the proceeding or of any information derived from the proceeding.
(8) The court must cause a copy of any order made under subsection (7) to be posted on a door of the court house or in another conspicuous place where notices are usually posted at the court house.
(9) A person must not contravene an order posted under subsection (8).
Penalty: Imprisonment for 12 months or 1000 penalty units.
(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—
(a) 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
(b) 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—
(a) 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
s. 16
(b) 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—
(a) 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
(b) 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—
(a) the lawful income of a person with an interest in, or effective control of, the property;
(b) any suspected unlawful activity of a person with an interest in, or effective control of, the property;
(c) the prior ownership of the property and any suspected unlawful activity of a person, or persons, who previously owned the property;
(d) the circumstances under which the property has come to the attention of Victoria Police;
(e) any other relevant matter.
(1) If—
(a) an unexplained wealth restraining order is made in respect of property of a person; and
(b) notice had not been given to that person of the application for the unexplained wealth restraining order—
the applicant must give written notice of the making of the unexplained wealth restraining order to that person.
(2) If a person to whom notice must be given under subsection (1) cannot be found after all reasonable steps have been taken to locate the person, the applicant must give notice to that person in any other manner that the court directs.
Note
Section 40C provides that an unexplained wealth restraining order may be made
in respect of property or an interest in property.
s. 16
(1) Subject to subsection (2), if an unexplained wealth restraining order is made in respect of property, a police 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—
(a) be in the prescribed form; and
(b) state the effect of section 40O.
(1) A person who has been given a notice under section 40K must provide a written declaration in relation to each item of property specified to be restrained in the unexplained wealth restraining order that states whether that person—
(a) has an interest in the item of property; and
(b) believes that any other person has an interest in the item of property.
(2) If the person making the declaration of interests in restrained property states that the person has an interest in an item of property, the person must also state in the declaration the nature and extent of that interest, including—
(a) in relation to a mortgage, the current value of the debt secured by the mortgage; and
(b) in relation to any security interest other than a mortgage, the current value of the debt secured by the interest in the property.
(3) If the person making the declaration of interests in restrained property believes that any other person has an interest in the property, the person making the declaration must state to the best of his or her knowledge the name and address of every other person who has an interest in the property.
Notes
1 An interest in property is defined in section 3(1) as meaning—
(a) a legal or equitable estate or interest in the property; or
(b) a right, power or privilege over, or in connection with, the property.
2 The nature of an interest in land, for example, may be an interest in fee simple, a leasehold interest or a security interest such as a mortgage.
3 The extent of an interest, for example, may be the whole of the property or some lesser specified interest, such as a half-interest as a tenant in common.
(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—
(a) be in the prescribed form; and
(b) 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) a notice under subsection (1) may be given in place of the notice under section 40K; and
(b) 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.
(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—
s. 16
(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.
Note
Section 40M(3)(a) provides that a notice under section 40M may be given to a person in place of a notice under section 40K.
(1) A person who is given a notice under section 40K must not, without reasonable excuse, fail to give the declaration of property interests required by that notice to a police officer within 14 days after the notice is given to the person.
Penalty: Level 9 fine (60 penalty units maximum).
(2) A person who is given a notice under section 40M must not, without reasonable excuse, fail to give the declaration of property interests required by that notice to a police officer within 28 days after the notice is given to the person.
Penalty: Level 9 fine (60 penalty units maximum).
(3) A person who is given a notice under section 40K or 40M must not make a statement in the declaration of property interests required by that notice that is false or misleading in a material particular.
Penalty: Level 9 fine (60 penalty units maximum).
(1) If a person who has been given a notice under section 40K or 40M—
(a) is convicted of an offence under section 40O(1), (2) or (3); and
(b) has not, prior to that conviction, provided the information that should have been provided in a declaration of property interests as required by the notice under section 40K or 40M—
the court which convicts that person must direct the person to provide the court with the information that should have been provided in a declaration of property interests.
(2) If a person who has been given a notice under section 40K or 40M—
(a) is convicted of any other offence; and
(b) has not, prior to that conviction, provided the information that should have been provided in a declaration of property interests as required by the notice under section 40K or 40M; and
(c) does not have a reasonable excuse for failing to provide the information in a declaration of property interests required by the notice under section 40K or 40M—
the court which convicts that person must direct the person to provide the court with the information that should have been provided in the declaration of property interests.
(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) a proceeding for making a false or misleading statement in the declaration; or
(b) 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) a proceeding for making a false or misleading statement in the declaration; or
(b) any proceeding under this Act—
but is not otherwise admissible in evidence against that person.
(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.
(2) An application under subsection (1) must be made—
(a) if notice is required to be given under section 40J—within 90 days after service of notice of the making of the unexplained wealth restraining order; or
(b) in any other case—within 90 days after the making of the unexplained wealth restraining order.
(3) Subject to subsection (4), the court may extend the period within which an application may be made, whether or not that period has expired, if it is in the interests of justice to do so.
(4) The court may not extend the period within which an application may be made in respect of property that has been forfeited by or under this Act.
(5) An applicant must give notice of the application, and, subject to subsection (10), of the grounds on which it is made—
(a) to the applicant for the unexplained wealth restraining order; and
(b) to any other person whom the applicant has reason to believe has an interest in the property.
(6) Any person referred to in subsection (5) is entitled to appear and to give evidence at the hearing of an application for a section 40S exclusion order but the absence of that person does not prevent the court from making a section 40S exclusion order.
(7) If the person referred to in subsection (5)(a) proposes to contest an application for a section 40S exclusion order, that person must give the applicant notice of the grounds on which the application is to be contested.
(8) If a person claiming an interest in the property is charged with an offence, any statement made or evidence given by the person in support of an application under this section is admissible against that person in a proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person.
(9) If a person claiming an interest in the property is charged with an offence, any information, document or thing obtained as a direct or indirect consequence of any statement made or evidence given by the person in support of an application under this section is admissible against that person in a proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person.
(10) If—
(a) a person applies under this section for a section 40S exclusion order; and
(b) that person is charged with an offence relevant to the application for the section 40S exclusion order; and
(c) that person has made an application under subsection (11)—
the person need not give notice of the grounds on which the application for the section 40S exclusion order is made until the application under subsection (11) has been determined.
(11) Any person referred to in subsection (5) may apply to the court for an order that the hearing of the application for a section 40S exclusion order be stayed until the charge referred to in subsection (10)(b)—
(a) is finally determined; or
(b) is withdrawn.
(12) The court may only order that the hearing of the application for a section 40S exclusion order be stayed if the court considers that not ordering a stay of the hearing would prejudice the fairness of the hearing of the charge.
Notes
1 Section 40C provides that an unexplained wealth restraining order may be made in respect of property or an interest in property.
2 Section 40W enables the court to make orders varying the property to which the unexplained wealth restraining order relates.
(1) On an application under section 40R, the court may make an order excluding the applicant's interest in property from the operation of the unexplained wealth restraining order if the court is satisfied that the property was lawfully acquired by the applicant.
(2) For the purposes of this section, the applicant's interest in property is presumed not to have been lawfully acquired unless the applicant proves otherwise.
(3) An order under subsection (1) made in respect of an interest in property excludes the interest in property from the unexplained wealth restraining order with effect from—
(a) 30 days after the date of the order; or
(b) such later date as the court sees fit.
(4) If the court makes an order under subsection (1) the court may also make an order declaring the nature, extent and value of the applicant's interest in the property.
(1) At a hearing of an application for an
section 40S exclusion order, the applicant for the order must provide
documentary evidence of any transactions alleged by the applicant to have
occurred that would support the claim that the property that is the subject of
the application was lawfully acquired by the applicant.
s. 16
(2) The court hearing the application may accept evidence other than documentary evidence if—
(a) that other evidence is provided in addition to documentary evidence of the transaction; or
(b) the court is satisfied that it is not reasonable to expect documentary evidence to exist because of the nature of the transfer of property, the effluxion of time or any other reason.
(1) If—
(a) a court has made a section 40S exclusion order excluding property (the excluded property ) from the operation of an unexplained wealth restraining order; and
(b) the owner of the excluded property owns or controls other property (the restrained property ), not less than the value of the excluded property, which remains subject to the unexplained wealth restraining order but is unlikely to be able to vest in the Minister—
the applicant for the unexplained wealth restraining order may apply to the
court for a substitution order to substitute the excluded property for the
restrained property for the purposes of unexplained wealth forfeiture.
s. 16
(2) An application under subsection (1) must be made within 30 days after the making of the section 40S exclusion order and must—
(a) specify the excluded property; and
(b) specify the restrained property; and
(c) state why, in the opinion of the applicant, it is unlikely that the restrained property is unlikely to be able to vest in the Minister.
(3) On the application for a substitution order under subsection (1), the section 40S exclusion order is stayed to the extent that it applies to the excluded property until a determination of the application is made under section 40V.
(1) Subject to subsection (3), on an application under section 40U, a court may make a substitution order if the court is satisfied that—
(a) a person owns or controls the property (the restrained property ) specified in the application as being subject to an unexplained wealth restraining order; and
(b) if the restrained property is forfeited to the Minister under unexplained wealth forfeiture, it is unlikely that it will be able to vest in the Minister; and
Examples
The property is held in another jurisdiction or the property has been dealt
with contrary to the unexplained wealth restraining order.
s. 16
(c) the person owns or controls property of the same or lesser value (the "excluded property")—
(i) in relation to which a section 40S exclusion order has been made excluding the property from the operation of the unexplained wealth restraining order; and
(ii) that, if it were subject to the unexplained wealth restraining order, would be available for forfeiture; and
(d) it is appropriate that the excluded property be substituted for the restrained property.
(2) For the purposes of subsection (1)(d), in determining whether it is appropriate that the excluded property be substituted for the restrained property, the court may have regard to—
(a) the extent to which the owner of the property has complied with the unexplained wealth restraining order; and
(b) the extent to which the owner's conduct has affected the likelihood of the restrained property being available to vest in the Minister, were it to be subject to unexplained wealth forfeiture; and
(c) the extent to which it appears the owner has structured the owner's assets so as to circumvent the operation of this Act; and
(d) the likelihood that the restrained property will be subject to forfeiture in another jurisdiction; and
(e) the goal of depriving persons engaged in serious criminal activity of property not lawfully acquired.
(3) The court must not make an order under subsection (1) in respect of property that is unavailable for forfeiture because the property is held in another jurisdiction if—
(a) the property is restrained or has been forfeited in that other jurisdiction under a law corresponding to this Act or any part of this Act; or
(b) in the case of property in respect of which an unexplained wealth restraining order was made on the basis that the person who owned or controlled the property has engaged in serious criminal activity—the serious criminal activity occurred outside Victoria.
(4) Subsection (3)(b) does not apply to any property that has been moved outside Victoria contrary to the terms of the unexplained wealth restraining order.
(5) If the court makes a substitution order under subsection (1)—
(a) the excluded property is substituted for the restrained property; and
(b) the section 40S exclusion order ceases to have effect, to the extent that it applies to the excluded property; and
(c) the restrained property ceases to be subject to the restraining order.
(1) The court may make any orders in relation to the property to which the unexplained wealth restraining order relates as it considers just.
(2) An order under subsection (1) may be made—
(a) when the court makes an unexplained wealth restraining order; or
(b) at any later time.
(3) An order under subsection (1) may be made on the application of—
(a) the applicant for the unexplained wealth restraining order; or
(b) a person to whose property the unexplained wealth restraining order relates or who has an interest in that property; or
(c) a trustee, if the unexplained wealth restraining order directed the trustee to take control of property; or
(d) a prescribed person, or a person belonging to a prescribed class of persons; or
(e) any other person who obtains the leave of the court to apply.
(4) Any person referred to in subsection (3) is
entitled to appear and to give evidence at the hearing of an application under
this section but the absence of that person does not prevent the court from
making an order.
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(5) The applicant for an order under subsection (1) must give written notice of the application to each other person referred to in subsection (3)(a) to (3)(c) who could have applied for the order.
(6) Examples of the kind of order that the court may make under subsection (1) include the following—
(a) an order varying the property to which the unexplained wealth restraining order relates;
(b) an order varying any condition to which the unexplained wealth restraining order is subject;
(c) an order providing for the reasonable living expenses and reasonable business expenses of any person referred to in section 40C(4);
(d) an order relating to the carrying out of any undertaking given under section 40C(7) in relation to the unexplained wealth restraining order;
(e) an order for examination under Part 12;
(f) an order directing any person whose property the unexplained wealth restraining order relates to or any other person to furnish to such person as the court directs, within the period specified in the order, a statement, verified by the oath or affirmation of that person, setting out such particulars of the property to which the unexplained wealth restraining order relates as the court thinks proper;
(g) an order directing any relevant registration authority not to register any instrument affecting property to which the unexplained wealth restraining order relates while it is in force except in accordance with the order;
(h) if the unexplained wealth restraining order did not direct a trustee to take control of property in accordance with section 40C(3), an order directing a trustee to take control of property at any later time specified in the order under subsection (1);
(i) if the unexplained wealth restraining order directed a trustee to take control of property—
(i) an order regulating the manner in which the trustee may exercise powers or perform duties under the unexplained wealth restraining order;
(ii) an order determining any question relating to the property;
(j) an order directing a person to whose property the unexplained wealth restraining order relates or who has an interest in that property to use or manage specified property to which the unexplained wealth restraining order relates, subject to conditions specified in the order;
(k) an order directing a person prescribed for the purposes of subsection (3)(d), if that person so consents, to do any activity specified in the order that is reasonably necessary for the purpose of managing specified property to which the unexplained wealth restraining order relates.
Example
The court may direct the carrying out of repairs on restrained premises.
Note
Property is defined as including any interest in property. See section 3(1).
On the application of the applicant for an unexplained wealth restraining order, the court that made the unexplained wealth restraining order may make an order setting aside the unexplained wealth restraining order if satisfied that the unexplained wealth restraining order is no longer required or appropriate.
(1) If—
(a) an unexplained wealth restraining order applies to property of a particular kind; and
(b) any law of Victoria provides for the registration of title to, or encumbrances on, or documents relating to the title to property of that kind—
the relevant registration authority under that law must, on application to it by the applicant for the unexplained wealth restraining order, record on the register the prescribed particulars of the unexplained wealth restraining order.
(2) Without limiting subsection (1), if an unexplained wealth restraining order relates to land under the operation of the Transfer of Land Act 1958 , a caveat may be lodged under section 89 of that Act by any person referred to in that section in relation to that order.
(3) For the purposes of subsection (2) and without limiting that subsection the following persons are taken to be a person mentioned in section 89 of the Transfer of Land Act 1958 —
(a) the applicant for the unexplained wealth restraining order;
(b) if the unexplained wealth restraining order directed a trustee to take control of the property, the trustee.
Note
Section 40C provides that an unexplained wealth restraining order may be made in respect of property or an interest in property.
(1) A person who knowingly contravenes an unexplained wealth restraining order by disposing of, or otherwise dealing with, an interest in property to which the order applies is guilty of an indictable offence and liable to—
(a) level 5 imprisonment (10 years maximum); or
(b) a level 5 fine (1200 penalty units maximum) or a fine not exceeding the value of the interest (as determined by the court), whichever is greater—
or to both.
(2) If the prescribed particulars referred to in section 40Y(1) are recorded as required by that section, a person who disposes of, or otherwise deals with, an interest in property after the recording of those particulars is, for the purposes of subsection (1), to be taken to know of the unexplained wealth restraining order.
(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—
(a) 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
(b) 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—
(a) within the period referred to in section 40R(2); or
(b) 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).
(1) The applicant for an unexplained wealth restraining order may apply to the court that made that order for a declaration that property that was subject to the unexplained wealth restraining order has been forfeited to the Minister under section 40ZA.
(2) An applicant under this section for a declaration that property has been forfeited is not required to give notice of the application to any person who has an interest in the property.
Note
Section 40C provides that an unexplained wealth restraining order may be made in respect of property or an interest in property.
(3) On an application under subsection (1), the court, if satisfied that the property has been forfeited to the Minister under section 40ZA, must make a declaration accordingly.
(1) Subject to subsection (2), if property is forfeited to the Minister under section 40ZA, a person who claims to have had an interest in the property immediately before it was forfeited may apply to the court that made the relevant unexplained wealth restraining order for a section 40ZD exclusion order excluding the interest in the property from unexplained wealth forfeiture.
(2) The application—
(a) must not be made except with the leave of the court; and
(b) must be made before the end of the period of 60 days commencing on the day on which the property is forfeited to the Minister.
(3) Subject to subsection (4), the court may grant a person leave under subsection (2)(a) to make an application if it is satisfied that the person's failure to seek to have that person's interest in the property excluded from the unexplained wealth restraining order was not due to neglect on the part of the applicant.
(4) The court may not grant a person leave under subsection (3) to make an application in respect of property that has been disposed of in accordance with section 44.
(5) An applicant must give written notice of the application, and, subject to subsection (10), of the grounds on which it is made—
(a) to the applicant for the unexplained wealth restraining order; and
(b) to any person whom the applicant has reason to believe had an interest in the property immediately before it was forfeited; and
(c) to a person prescribed for the purposes of section 44(1).
(6) Any person notified under subsection (5) is entitled to appear and to give evidence at the hearing of the application but the absence of that person does not prevent the court from making a section 40ZD exclusion order.
(7) If the applicant for the unexplained wealth restraining order proposes to contest an application under this section for a section 40ZD exclusion order, that applicant must give the applicant for the section 40ZD exclusion order written notice of the grounds on which the application for the section 40ZD exclusion order is to be contested.
(8) If a person claiming an interest in the property is charged with an offence, any statement made or evidence given by the person in support of an application under this section is admissible against that person in a proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person.
(9) If a person claiming an interest in the property is charged with an offence, any information, document or thing obtained as a direct or indirect consequence of any statement made or evidence given by the person in support of an application under this section is admissible against that person in a proceeding for perjury or any proceeding under this Act but is not otherwise admissible in evidence against that person.
(10) If—
(a) a person applies under this section for a section 40ZD exclusion order; and
(b) that person is charged with an offence relevant to the application for the section 40ZD exclusion order; and
(c) that person has made an application under subsection (11)—
the person need not give notice of the grounds on which the application for the section 40ZD exclusion order is made until the application under subsection (11) is determined.
(11) The applicant for the section 40ZD exclusion order or any person referred to in subsection (5)(a) or (b) may apply to the court for an order that the hearing of the application for the exclusion order be stayed until the charge referred to in subsection (10)(b)—
(a) is finally determined; or
(b) is withdrawn.
(12) The court may only order that the hearing of the application for a section 40ZD exclusion order be stayed if the court considers that not ordering a stay of the hearing would prejudice the fairness of the hearing of the charge.
(1) On an application made under section 40ZC, the court may make an order excluding the applicant's interest in property from the operation of unexplained wealth forfeiture if the court is satisfied that the property was lawfully acquired by the applicant.
(2) For the purposes of this section, the applicant's interest in property is presumed not to have been lawfully acquired unless the applicant proves otherwise.
(3) The evidentiary requirements specified in section 40T apply to a hearing of an application for an exclusion order under this section.
(4) If the court makes an exclusion order under subsection (1), it may also make an order declaring the nature, extent and value of the applicant's interest in the property.
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