Unexplained Wealth (Commonwealth Powers) Act 2021

This

Act may be cited as the Unexplained

Wealth (Commonwealth Powers) Act 2021.

This

Act comes into operation on a day to be fixed by proclamation.

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—

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);

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.

The following laws of the Commonwealth are adopted within the meaning of section 51(xxxvii) of the Constitution of the Commonwealth:

National

Unexplained Wealth Laws 1;

National

Unexplained Wealth Laws 2.

The adoption of a law under subsection (1) has effect for a period—

beginning when this section commences; and

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.

The operation of a paragraph in subsection (1) is not affected by any other paragraph contained in that subsection or in section 5(1).

The following matters are referred to the Parliament of the

Commonwealth Proceeds of Crime Act:

matters relating to unexplained wealth (not including a matter excluded by subsection (2));

matters relating to information gathering.

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

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 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.

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

beginning when this section commences; 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.

The operation of a paragraph in subsection (1) is not affected by any paragraph contained in section 4(1).

For the avoidance of 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 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

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.

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.

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:

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

an order made as a result of an application referred to in paragraph (a);

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 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:

an indictable offence against a law of the State;

an offence against—

section

68(3) of the Criminal

Law Consolidation Act 1935;

or

section

52, 53, 72 or 74 of the Fisheries

Management Act 2007;

or

section

99 of the Liquor

Licensing Act 1997;

or

a provision of the Lottery and Gaming Act 1936;

or

section

47, 48, 48A, 51 or 60 of the National

Parks and Wildlife Act 1972;

or

section

28(1)(a) or 41 of the Summary

Offences Act 1953.

The

Governor may, at any time, by proclamation, fix a day as the day on which—

adoption

1 and the amendment reference are to terminate; or

adoption

2 is to terminate; or

the amendment reference is to terminate; or

adoption

1 is to terminate (if the amendment reference has been previously terminated).

The

Governor may, by proclamation, revoke a proclamation published under subsection (1).

A revoking proclamation under subsection (2) has effect only if published before the day fixed under subsection (1).

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).

The

Governor, is inconsistent with the fundamental attributes of the unexplained wealth provisions.

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.

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.

The

Governor may, by proclamation, revoke a proclamation published under subsection (1) or (3).

A revoking proclamation under subsection (4) has effect only if published before the day fixed under subsection (1) or (3).

The revocation of a proclamation published under subsection (1) or (3) does not prevent publication of a further proclamation under that subsection.

A proclamation under subsection (1) or (3) has effect despite any earlier proclamation published under section 9(1).

If the amendment reference is terminated but adoption 1 is not terminated, the termination of the amendment reference does not affect—

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

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—

laws referred to in paragraph (a) that come into operation after that termination; or

provisions referred to in section 6.

Accordingly, the amendment reference continues to have effect for the purposes of subsection (1) unless adoption 1 is terminated.

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.

For the purposes of subsection (1)—

the laws referred to in subsection (1)(a) include instruments under the Commonwealth Proceeds of Crime Act;

and

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.

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.

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.