Unexplained Wealth (Commonwealth Powers) Act 2018

This Act is the Unexplained Wealth (Commonwealth Powers) Act 2018.

The main purpose of this Act is 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.

This Act commences on a day or days to be appointed by proclamation.

In this Act—

amendment reference means the reference to the Parliament of the Commonwealth of the matters covered by section 4 (1) (c).

assent date means the date of assent to this Act.

commencement day means the day on which section 4 (1) comes into operation.

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.

pre-assent version of the Commonwealth Proceeds of Crime Act means the Proceeds of Crime Act 2002 of the Commonwealth, as originally enacted and as subsequently amended by amendments enacted at any time before the assent date.

prescribed termination day means the day on which text reference 1 and the amendment reference are to terminate as set out in section 9 (1).

reference means—

text reference 1, or

text reference 2, or

the amendment reference.

relevant offence means an offence of a kind specified in section 8.

text reference 1 means the reference to the Parliament of the Commonwealth of the matters covered by section 4 (1) (a).

text reference 2 means the reference to the Parliament of the Commonwealth of the matters covered by section 4 (1) (b).

unexplained wealth—see section 5.

unexplained wealth provisions means—

section 20A and Part 2-6 of the Commonwealth Proceeds of Crime Act, and

the other provisions of that Act in so far as they relate to section 20A and Part 2-6 of that Act, and

instruments made under that Act for the purposes of a provision referred to in paragraph (a) or (b).

Note—

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

Notes included in this Act (except in Schedules 1–4) do not form part of this Act.

The following matters are referred to the Parliament of the Commonwealth—

the matters to which the pre-assent version of the Commonwealth Proceeds of Crime Act would relate if express amendments were made to it in the terms, or substantially in the terms, of the text set out in Schedules 1 and 2 to this Act but excluding matters to which that version otherwise relates,

the matters to which the pre-assent version of the Commonwealth Proceeds of Crime Act would relate if express amendments were made to it in the terms, or substantially in the terms, of the text set out in Schedule 3 to this Act but excluding matters to which that version otherwise relates,

the matters relating to unexplained wealth (not including a matter excluded by subsection (2)) and to information gathering, 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.

The following matters are excluded for the purposes of subsection (1) (c)—

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,

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.

The operation of each paragraph of subsection (1) is not affected by any other paragraph.

The reference of a matter under subsection (1) has effect only—

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

if and to the extent that the matter is included in the legislative powers of the Parliament of the State.

To avoid doubt, it is the intention of the Parliament of the State that—

the Commonwealth Proceeds of Crime Act may be expressly amended, or have its operation otherwise affected, at any time after the commencement of subsection (1) by provisions of Commonwealth Acts the operation of which is based on legislative powers that the Parliament of the Commonwealth has apart from under the references under subsection (1), and

the Commonwealth Proceeds of Crime Act may have its operation affected, otherwise than by express amendment, at any time after the commencement of subsection (1) by provisions of instruments made or issued under that Act.

Despite any other provision of this section, a reference under subsection (1) has effect for a period—

beginning at the beginning of the commencement day, and

ending at the beginning of the day fixed under this Act as the day on which the reference is to terminate,

but no longer.

For the purposes of section 4 (1) (c), unexplained wealth means property or wealth that might not have been lawfully acquired.

For the purposes of subsection (1) and section 4 (2) (b), the meaning of lawfully acquired, property and wealth includes, but is not limited to, the meaning of those terms in the pre-assent version of the Commonwealth Proceeds of Crime Act.

For the purposes of section 4 (1) (c), 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.

For the purposes of section 14G of the Commonwealth Proceeds of Crime Act, the Governor may, by proclamation published on the NSW legislation website, 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.

For the purposes of section 14J of the Commonwealth Proceeds of Crime Act, the Governor may, by proclamation published on the NSW legislation website, declare that an express amendment of that Act (other than Subdivision B of Division 2 of Part 1-4) is not to apply to—

an application covered by subsection (3) of that section, or

an order made as a result of an application referred to in paragraph (a) of this subsection, or

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 Commonwealth Proceeds of Crime Act, a serious criminal offence, within the meaning of the Criminal Assets Recovery Act 1990, section 6(2), is specified by this Act, other than—

an offence specified in paragraph (c) or (h) of the definition, and

an offence specified in paragraph (i) of the definition, but only to the extent to which the offence relates to an offence specified in paragraph (c) or (h) of the definition.

Subject to earlier termination under subsection (2), text reference 1 and the amendment reference terminate on the day that is the sixth anniversary of the commencement day or on a later day fixed by the Governor by proclamation under section 11 (1).

Text reference 1 or the amendment reference terminates on a day that is earlier than the prescribed termination day if the Governor fixes that earlier day by proclamation under section 12 (1) (a) or (b) or section 13 (2) or (4) as the day on which the reference is to terminate.

The Governor may, at any time, by proclamation published on the NSW legislation website, fix a day as the day on which text reference 2 is to terminate.

The Governor may, by proclamation published on the NSW legislation website, revoke a proclamation published under subsection (1).

A revoking proclamation has effect only if published before the day fixed under subsection (1).

The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection.

The Governor may, at any time before the prescribed termination day, by proclamation published on the NSW legislation website, fix a day that is later than the prescribed termination day as the day on which text reference 1 and the amendment reference are to terminate.

More than one proclamation may be made under subsection (1).

The Governor may, at any time, by proclamation published on the NSW legislation website, fix a day that is earlier than the prescribed termination day as the day on which—

text reference 1 is to terminate, or

the amendment reference is to terminate.

The Governor may, by proclamation published on the NSW legislation website, revoke a proclamation published under subsection (1), in which case the revoked proclamation is taken (for the purposes of section 9 (2)) never to have been published.

A revoking proclamation has effect only if published before the day fixed under subsection (1).

The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection.

A proclamation under subsection (1) has effect despite any earlier proclamation published under section 11 (1).