Unexplained Wealth (Commonwealth Powers) Act 2018

This Act does not exclude or limit the operation of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.

Subsection (1) does not apply to the *national unexplained wealth provisions.

For the interaction between the national unexplained wealth provisions and a law of a State or Territory, see section 14L.

What this section is about This section sets out the constitutional basis of the *national unexplained wealth provisions.

National unexplained wealth provisions The national unexplained wealth provisions are—

the *main unexplained wealth provisions; and

the *participating jurisdiction information gathering provisions; and

the *unexplained wealth machinery and transitional provisions.

Main unexplained wealth provisions The main unexplained wealth provisions are—

section 20A and Part 2-6; and

the other provisions of this Act in so far as they relate to that section or that Part; and

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

Participating jurisdiction information gathering provisions The participating jurisdiction information gathering provisions are—

section 14M and Schedule 1; and

the other provisions of this Act in so far as they relate to that section or that Schedule; and

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

Unexplained wealth machinery and transitional provisions The unexplained wealth machinery and transitional provisions are—

the following provisions (the main machinery and transitional provisions)—

sections 14A to 14L and 14N;

the definitions of adoption Act, amendment reference, cooperating State, express amendment, information gathering, main machinery and transitional provisions, main unexplained wealth provisions, national unexplained wealth provisions, non-participating State, participating jurisdiction information gathering provisions, participating State, post-amended version 1 of this Act, post-amended version 2 of this Act, pre-amended version of this Act, referral Act, relevant law 1, relevant law 2, special confiscation law, text reference 1, text reference 2, unexplained wealth and unexplained wealth machinery and transitional provisions in section 338;

Schedule 2; and

the other provisions of this Act in so far as they relate to any of the main machinery and transitional provisions; and

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

Application in participating States The application of the *national unexplained wealth provisions in a *participating State is based on—

the legislative powers that the Commonwealth Parliament has because of a reference or an adoption by the Parliaments of the participating States under paragraph 51(xxxvii) of the Constitution; and

the other legislative powers that the Commonwealth Parliament has under the Constitution.

Application in non-participating States The application of the *national unexplained wealth provisions (other than the *unexplained wealth machinery and transitional provisions) in a *non-participating State is based on—

the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and

the other legislative powers that the Commonwealth Parliament has under the Constitution.

The application of the *unexplained wealth machinery and transitional provisions in a *non-participating State that—

was a *participating State because it had referred to the Commonwealth Parliament—

*text reference 1; and

*text reference 2; and

the *amendment reference; and

ceased to be a participating State because it terminated either or both of the following—

the referral of text reference 1;

the referral of the amendment reference; and

has not terminated the referral of text reference 2;

the legislative powers that the Commonwealth Parliament has because of the referral of text reference 2 under paragraph 51(xxxvii) of the Constitution; and

the other legislative powers that the Commonwealth Parliament has under the Constitution.

The application of the *unexplained wealth machinery and transitional provisions in a *non-participating State that—

was a *participating State because it had—

adopted *post-amended version 1 of this Act; and

adopted *post-amended version 2 of this Act; and

referred to the Commonwealth Parliament the *amendment reference; and

ceased to be a participating State because it terminated either or both of the following—

the adoption of post-amended version 1 of this Act;

the referral of the amendment reference; and

has not terminated the adoption of post-amended version 2 of this Act;

the legislative powers that the Commonwealth Parliament has because of the adoption of post-amended version 2 of this Act under paragraph 51(xxxvii) of the Constitution; and

the other legislative powers that the Commonwealth Parliament has under the Constitution.

The application of the *unexplained wealth machinery and transitional provisions in a *non-participating State not covered by subsection (8) or (9) is based on—

the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and

the other legislative powers that the Commonwealth Parliament has under the Constitution.

Application in a self-governing Territory The application of the *national unexplained wealth provisions in a *self-governing Territory is based on—

the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory; and

the other legislative powers that the Commonwealth Parliament has under the Constitution.

Application outside Australia The application of the *national unexplained wealth provisions outside *Australia is based on—

the legislative powers that the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and

the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxix)) and section 122 of the Constitution; and

the other legislative powers that the Commonwealth Parliament has under the Constitution.

Participating State A State is a participating State if, for the purposes of paragraph 51(xxxvii) of the Constitution, the Parliament of the State—

has, by its *referral Act, referred to the Commonwealth Parliament—

*text reference 1 (see subsection (2)); and

*text reference 2 (see subsection (3)); and

the *amendment reference (see subsection (4));

has, by its *adoption Act—

adopted *post-amended version 1 of this Act (see subsection (5)); and

adopted *post-amended version 2 of this Act (see subsection (6)); and

referred to the Commonwealth Parliament the amendment reference;

Text reference 1 Text reference 1 of a State means the matters to which the *pre-amended version of this Act would relate if *express amendments were made to it in the terms, or substantially in the terms, of *relevant law 1, but excluding matters to which the pre-amended version of this Act otherwise relates.

Text reference 2 Text reference 2 of a State means the matters to which the *pre-amended version of this Act would relate if *express amendments were made to it in the terms, or substantially in the terms, of *relevant law 2, but excluding matters to which the pre-amended version of this Act otherwise relates.

Amendment reference The amendment reference of a State means the matters relating to—

*unexplained wealth (see section 14D); and

*information gathering (see section 14E);

Post-amended version 1 of this Act Post-amended version 1 of this Act, in relation to the *adoption Act of a State, means this Act as amended by—

*relevant law 1; and

any other *express amendments of this Act that—

were enacted at any time after the enactment of relevant law 1 but before the enactment of the adoption Act; and

were not amendments of the *main machinery and transitional provisions (see subsection 14B(5));

Post-amended version 2 of this Act Post-amended version 2 of this Act, in relation to the *adoption Act of a State, means this Act as amended by—

*relevant law 2; and

any other *express amendments of this Act that—

were enacted at any time after the enactment of relevant law 2 but before the enactment of the adoption Act; and

were amendments of the *main machinery and transitional provisions (see subsection 14B(5));

Certain things do not affect a participating State’s status A State is a participating State even if the State’s referral Act or adoption Act provides that—

the reference to the Commonwealth Parliament of *text reference 1, *text reference 2 or the *amendment reference is to terminate in particular circumstances; or

the adoption of *post-amended version 1 of this Act or *post-amended version 2 of this Act is to terminate in particular circumstances; or

the reference to the Commonwealth Parliament of the amendment reference does not include the matter of including a provision in section 20A or Part 2-6 that—

requires a person pay an amount otherwise than by order of a court; or

requires or permits property (within the meaning of subsection 14D(2)) to be restrained, forfeited or seized otherwise than by order of a court; or

the reference to the Commonwealth Parliament of text reference 1, text reference 2 or the amendment reference has effect only—

if and to the extent that the matter is not included in the legislative powers of the Commonwealth Parliament (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); or

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

When a State ceases to be a participating State A State ceases to be a participating State if—

in the case where the Parliament of the State has referred to the Commonwealth Parliament *text reference 1 and *text reference 2—either or both of those references terminate; or

in the case where the Parliament of the State has adopted the *post-amended version 1 of this Act and *post-amended version 2 of this Act—either or both of those adoptions terminate.

A State ceases to be a participating State if—

the State’s referral of the *amendment reference terminates; and

subsection (10) does not apply to the termination.

A State does not cease to be a participating State because of the termination of its referral of the *amendment reference if—

the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and

the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and

that State’s amendment reference, and the amendment reference of every other State, terminates on the same day.

Other definitions In this Act—

adopts *post-amended version 1 of this Act; and

adopts *post-amended version 2 of this Act; and

refers the *amendment reference to the Commonwealth Parliament.

For the purposes of the *amendment reference of a State (see subsection 14C(4)), unexplained wealth means property or wealth that might not have been lawfully acquired.

The meaning of lawfully acquired, property and wealth in subsection (1) includes, but is not limited to, the meaning of those terms in this Act as in force immediately before the enactment of the first *referral Act of a State.

States that have referred text references 1 and 2 A *non-participating State is a cooperating State if—

an *express amendment of section 14G or 14J (about rollback), or Division 2 of Part 4-3 (about sharing proceeds), was enacted; and

before the amendment was enacted, the State was a *participating State; and

after the amendment was enacted, the State ceased to be a participating State because it terminated either or both of the following—

the referral of *text reference 1;

the referral of the *amendment reference; and

the termination was effected by a proclamation that was made under the State’s *referral Act for the purpose of this section; and

the State has not terminated its referral of *text reference 2.

Under Division 2 of Part 4-3 (which is about sharing proceeds of confiscated assets under the national cooperative scheme), a non-participating State that is a cooperating State is treated in the same way as a participating State.

States that have adopted the post-amended versions of this Act A *non-participating State is also a cooperating State if—

an *express amendment of section 14G or 14J (about rollback), or Division 2 of Part 4-3 (about sharing proceeds), was enacted; and

before the amendment was enacted, the State was a *participating State; and

after the amendment was enacted, the State ceased to be a participating State because it terminated either or both of the following—

the adoption of *post-amended version 1 of this Act;

the referral of the *amendment reference; and

the termination was effected by a proclamation that was made under the State’s *adoption Act for the purpose of this section; and

the State has not terminated its adoption of *post-amended version 2 of this Act.

Despite subsections (1) and (2), a *non-participating State ceases to be, or is not, a cooperating State if a declaration under subsection (4) is in force in relation to the State.

The Minister may, by legislative instrument, declare that a State is not a *cooperating State.

A declaration made under subsection (4) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration.

When this section applies This section applies if—

a proclamation is made under the *referral Act or *adoption Act of a *participating State for the purposes of this section; and

the proclamation declares that an *express amendment of this Act (other than this Subdivision) is not to apply to proceedings covered by subsection (3), (4) or (5); and

the proclamation comes into force in the period of 6 months beginning on the day the amendment is enacted.

Application of this Act to proceedings This Act applies to the proceedings as if the amendment had not been enacted.

Proceedings for restraining orders Proceedings are covered by this subsection if—

the proceedings are instituted while the proclamation is in force; and

the proceedings are for the making of a *restraining order under section 20A in relation to a *suspect; and

the affidavit supporting the application for the order states that an *authorised officer suspects either or both of the following—

that the suspect has committed a *relevant offence of a *participating State;

that the whole or any part of the suspect’s *wealth was derived from a relevant offence of a participating State.

Proceedings for unexplained wealth orders Proceedings are covered by this subsection if—

the proceedings are instituted while the proclamation is in force; and

the proceedings are for the making of an *unexplained wealth order (including a *preliminary unexplained wealth order) in relation to a *suspect; and

the application for the order states that an *authorised officer suspects that the whole or any part of the suspect’s *wealth was derived from a *relevant offence of a *participating State.

Proceedings for other orders Proceedings are covered by this subsection if—

the proceedings are instituted while the proclamation is in force; and

the proceedings are for the making of an order that relates to—

a *restraining order made in proceedings covered by subsection (3); or

an *unexplained wealth order (including a *preliminary unexplained wealth order) made in proceedings covered by subsection (4).

When this section applies This section applies if—

a law (the disapplying law) of a *self-governing Territory is made for the purposes of this section; and

the law declares that an *express amendment of this Act (other than this Subdivision) is not to apply to proceedings covered by subsection (3), (4) or (5); and

the disapplying law comes into force in the period of 6 months beginning on the day the amendment is enacted.

Application of this Act to proceedings This Act applies to the proceedings as if the amendment had not been enacted.

Proceedings for restraining orders Proceedings are covered by this subsection if—

the proceedings are instituted while the disapplying law is in force; and

the proceedings are for the making of a *restraining order under section 20A in relation to a *suspect; and

the affidavit supporting the application for the order states that an *authorised officer suspects either or both of the following—

that the suspect has committed a *Territory offence;

that the whole or any part of the suspect’s *wealth was derived from a Territory offence.

Proceedings for unexplained wealth orders Proceedings are covered by this subsection if—

the proceedings are instituted while the disapplying law is in force; and

the proceedings are for the making of an *unexplained wealth order (including a *preliminary unexplained wealth order) in relation to a *suspect; and

the application for the order states that an *authorised officer suspects that the whole or any part of the suspect’s *wealth was derived from a *Territory offence.

Proceedings for other orders Proceedings are covered by this subsection if—

the proceedings are instituted while the disapplying law is in force; and

the proceedings are for the making of an order that relates to—

a *restraining order that has been made in proceedings covered by subsection (3); or

an *unexplained wealth order (including a *preliminary unexplained wealth order) that has been made in proceedings covered by subsection (4).

When this section applies This section applies if—

a proclamation is made under the *referral Act or *adoption Act of a *participating State for the purposes of this section; and

the proclamation declares that an *express amendment of this Act (other than this Subdivision) is not to apply to—

an application covered by subsection (3); or

an order made as a result of an application covered by subsection (3); or

a notice covered by subsection (4); and

the proclamation comes into force in the period of 6 months beginning on the day the amendment is enacted.

Application of this Act to the application, order or notice This Act applies to the application, order or notice as if the amendment had not been enacted.

Applications for production orders This subsection covers an application if—

the application is made while the proclamation is in force; and

the application is for the making of a *production order under clause 1 of Schedule 1; and

the application is made by an *authorised State/Territory officer of the State.

Notices to financial institutions This subsection covers a notice if—

the notice is given while the proclamation is in force; and

the notice is given to a *financial institution under clause 12 of Schedule 1; and

the notice is given by an official of the State specified in subclause 12(3) of Schedule 1.

When this section applies This section applies if—

a law (the disapplying law) of a *self-governing Territory is made for the purposes of this section; and

the disapplying law declares that an *express amendment of this Act (other than this Subdivision) is not to apply to—

an application covered by subsection (3); or

an order made as a result of an application covered by subsection (3); or

a notice covered by subsection (4); and

the disapplying law comes into force in the period of 6 months beginning on the day the amendment is enacted.

Application of this Act to the application, order or notice This Act applies to the application, order or notice as if the amendment had not been enacted.

Applications for production orders This subsection covers an application if—

the application is made while the disapplying law is in force; and

the application is for the making of a *production order under clause 1 of Schedule 1; and

the application is made by an *authorised State/Territory officer of the Territory.

Notices to financial institutions This subsection covers a notice if—

the notice is given while the disapplying law is in force; and

the notice is given to a *financial institution under clause 12 of Schedule 1; and

the notice is given by an official of the Territory specified in subclause 12(3) of Schedule 1.

Concurrent operation of laws The *national unexplained wealth provisions do not exclude or limit the operation of a law of a State or Territory (including a *special confiscation law) to the extent that the law is capable of operating concurrently with those provisions.

A *corresponding law of a State or Territory is a special confiscation law while the State is a *participating State or the Territory is a *self-governing Territory.

Without limiting subsection (1), the *national unexplained wealth provisions do not exclude or limit the concurrent operation of a *special confiscation law merely because—

that law, or an order made under that law—

prevents or restricts a person from disposing of, or dealing with, property (for example, by way of a restraining order made under that law); or

confiscates or forfeits property of a person (for example, by way of a forfeiture order made under that law); or

requires the person to pay an amount (for example, by way of an unexplained wealth order made under that law); or

deals with a matter prescribed by the regulations; and

the national unexplained wealth provisions, or an order made under those provisions, also—

prevent or restrict the person from disposing of, or dealing with, the property (for example, by way of a restraining order under section 20A); or

require the person to pay an amount (for example, by way of an *unexplained wealth order); or

deal with a matter prescribed by the regulations.

Subsection (3) applies even if the *special confiscation law, or order made under that law, does any one or more of the following—

prevents or restricts a person from disposing of, or dealing with, property in circumstances in which a *restraining order under section 20A could not be obtained to prevent or restrict such disposal or dealing;

prevents or restricts, in particular circumstances, disposal of, or dealing with, more or less property than could be covered by a restraining order under section 20A in those circumstances;

prevents or restricts disposal of, or dealing with, property that is or could be excluded from a restraining order under section 20A;

confiscates or forfeits, in particular circumstances, property of a greater or lesser value than the *unexplained wealth amount of a person under an *unexplained wealth order that is or could be made in those circumstances;

requires payment of an amount that is greater or lesser than the amount that is or could be payable under an unexplained wealth order;

deals with a matter prescribed by the regulations.

This section does not affect section 14A This section does not by implication affect section 14A (which deals with the concurrent operation of this Act, except the *national unexplained wealth provisions, and laws of States and Territories).

Application of this section This section applies in relation to the operation of the *national unexplained wealth provisions and a law of a *participating State or *self-governing Territory in the period referred to in subsection (7), including in relation to—

orders that are made under a *special confiscation law in that period in relation to proceedings that are instituted under the special confiscation law before or in that period; and

orders that are made under a special confiscation law before that period and that are in force at any time in that period; and

orders that are made under the national unexplained wealth provisions in that period in relation to proceedings that are instituted under the national unexplained wealth provisions before or in that period.

For the purposes of subsection (6), the period is as follows—

for a *participating State that has a *referral Act—the period starts at the commencement of this section and ends only if the State ceases to be a participating State, in which case, the period ends at the time the State so ceases;

for a participating State that has an *adoption Act—the period starts at the commencement of the State’s adoption Act and ends only if the State ceases to be a participating State, in which case, the period ends at the time the State so ceases;

for a *self-governing Territory—the period starts at the commencement of this section and does not end.