40EProperty may be subject to both unexplained wealth restraining order and other orders

40E Property may be subject to both unexplained wealth restraining order and other orders (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— S. 40E(2)(a) amended by No. 26/2024 s. 14. (a) the property being able to be disposed of in accordance with section 44 because automatic forfeiture of the property has occurred under section 35 in relation to a Schedule 2 offence; S. 40E(2)(b) amended by No. 26/2024 s. 14. (b) the property being able to be disposed of in accordance with section 44 because the property has been forfeited under section 36GA on the owner of the property being declared to be a serious drug offender; S. 40E(2)(c) amended by No. 26/2024 s. 14. (c) the property being able to be disposed of in accordance with section 44 because a forfeiture order under Division 1 of Part 3 has been made in relation to the property; S. 40E(2)(d) amended by No. 26/2024 s. 14. (d) the property being able to be disposed of in accordance with section 44 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. S. 40EA inserted by No. 26/2024 s. 15. 40EA Property may be subject to more than one unexplained wealth restraining order (1) Property or an interest in property may be subject to either or both of the following— (a) an unexplained wealth restraining order under section 40I; (b) an unexplained wealth restraining order under section 40IA. (2) If an unexplained wealth restraining order under section 40I and an unexplained wealth restraining order under section 40IA apply to the same property or interest in property, the unexplained wealth restraining order made under section 40I, 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 because forfeiture of the property has occurred under section 40ZA or 40ZAB; (b) the unexplained wealth restraining order made under section 40I being set aside in whole or in relation to the property or interest in property under section 40X; (c) the property or interest in property being excluded from the operation of the unexplained wealth restraining order made under section 40I by an unexplained wealth forfeiture exclusion order. (3) If an unexplained wealth restraining order under section 40I and an unexplained wealth restraining order under section 40IA apply to the same property or interest in property, the unexplained wealth restraining order made under section 40IA, 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 because forfeiture of the property has occurred under section 40ZA or 40ZAB; (b) the unexplained wealth restraining order made under section 40IA being set aside in whole or in relation to the property or interest in property under section 40X or 40ZAAG; (c) the unexplained wealth restraining order made under section 40IA ceasing to have effect under section 40XA; (d) the property or interest in property being excluded from the operation of the unexplained wealth restraining order made under section 40IA by an unexplained wealth forfeiture exclusion order. S. 40F inserted by No. 79/2014 s. 16. 40F Application for unexplained wealth restraining 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. S. 40F(2A) inserted by No. 26/2024 s. 16(1). (2A) 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, having regard to the matters set out in section 40ZAAC— (a) a person has wealth that exceeds their lawfully acquired wealth; and (b) the total value of the wealth that is not lawfully acquired is $200 000 or more; and (c) the person has an interest in the property sought to be restrained. S. 40F(3) amended by No. 26/2024 s. 16(2)(a). (3) An application under subsection (1), (2) or (2A) must be supported by an affidavit of a police officer— (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 S. 40F(3)(ca) inserted by No. 26/2024 s. 16(2)(b). (ca) in the case of an application under subsection (2A), stating that the police officer suspects that, having regard to the matters set out in section 40ZAAC— (iii) the person has an interest in the property sought to be restrained; and S. 40F(3)(d) amended by No. 26/2024 s. 16(2)(c). (d) setting out the grounds on which the police officer has the suspicion referred to in paragraph (b), (c) or (ca) (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 S. 40F(6)(ab) inserted by No. 26/2024 s. 16(3). (ab) any property that was, on the day when the first application for a restraining order in respect of property of the person was made under this Act, 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. (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 to s. 40F(8) amended by No. 26/2024 s. 16(4). Separate applications under subsections (1), (2) and (2A) 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. S. 40G inserted by No. 79/2014 s. 16. 40G Property lawfully acquired (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; 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)— S. 40G(1)(f) substituted by No. 27/2016 s. 14. (f) property acquired by a person, whether or not it is acquired for sufficient consideration, is not property lawfully acquired if the person acquired the property knowing, or in circumstances such as to arouse a reasonable suspicion, that the property was derived or realised, or substantially derived or realised, directly or indirectly, from any unlawful activity; S. 40G(1)(g) inserted by No. 27/2016 s. 14. (g) property acquired by a person that is or has been subject to a mortgage, lien, charge, security or other encumbrance is not property lawfully acquired if that mortgage, lien, charge, security or other encumbrance has been wholly or partly discharged using property that was not lawfully acquired. (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. S. 40GA inserted by No. 26/2024 s. 17. 40GA Benefits lawfully derived (a) a benefit derived by a person for sufficient consideration that has been lawfully acquired is taken to have been lawfully derived only if the consideration given for the benefit by the person was lawfully acquired; (b) a benefit derived by a person other than for sufficient consideration is taken to have been lawfully derived only if the person from whom it was derived lawfully derived the benefit; (c) a benefit derived by a person as a prize or as the proceeds of any form of gambling is taken to have been lawfully derived 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) a benefit derived by a person from salary or wages or from payment under a contract for services is taken to have been lawfully derived only if the salary or wages or the payment for the services (as the case may be)— (e) a benefit derived by a person, whether or not it is derived for sufficient consideration, is not a benefit lawfully derived if the person derived the benefit knowing, or in circumstances such as to arouse a reasonable suspicion, that the benefit was derived, or substantially derived, directly or indirectly, from any unlawful activity. (2) Subsection (1) does not limit the criteria for determining for the purposes of this Part whether or not a benefit has been lawfully derived. S. 40GB inserted by No. 26/2024 s. 17. 40GB Services and advantages lawfully obtained (a) a service or an advantage obtained by a person for sufficient consideration that has been lawfully acquired is taken to have been lawfully obtained only if the consideration given for the service or advantage by the person was lawfully acquired; (b) a service or an advantage obtained by a person other than for sufficient consideration is taken to have been lawfully obtained only if the person from whom it was obtained lawfully obtained the service or advantage; (c) a service or an advantage obtained by a person as a prize or as the proceeds of any form of gambling is taken to have been lawfully obtained 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) a service or an advantage obtained by a person from salary or wages or from payment under a contract for services is taken to have been lawfully obtained only if the salary or wages or the payment for the services (as the case may be)— (e) a service or an advantage obtained by a person, whether or not it is obtained for sufficient consideration, is not a service or an advantage lawfully obtained if the person obtained the service or advantage knowing, or in circumstances such as to arouse a reasonable suspicion, that the service or advantage was obtained, or substantially obtained, directly or indirectly, from any unlawful activity. (2) Subsection (1) does not limit the criteria for determining for the purposes of this Part whether or not a service or an advantage has been lawfully obtained. S. 40H inserted by No. 79/2014 s. 16. 40H Procedure on application for unexplained wealth restraining order (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 (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. (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— (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). S. 40I (Heading) amended by No. 26/2024 s. 18(1). S. 40I inserted by No. 79/2014 s. 16. 40I Determination of application under section 40F(1) or (2) for unexplained wealth restraining order (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— (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 (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— (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. Note to s. 40I inserted by No. 26/2024 s. 18(2). The court may order that an application for an unexplained wealth restraining order be heard in closed court. See Part 5 of the **Open Courts Act 2013**. S. 40IA inserted by No. 26/2024 s. 19. 40IA Determination of application under section 40F(2A) for unexplained wealth restraining order (1) On an application under section 40F(2A) for an unexplained wealth restraining order, the court must make an unexplained wealth restraining order if it is satisfied that, having regard to the matters set out in section 40ZAAC— (iii) the person has an interest in the property sought to be restrained; and (b) there are reasonable grounds for the suspicion referred to in paragraph (a). (2) For the purposes of subsection (1), it does not matter whether the police officer has a reasonable suspicion that the person referred to in paragraph (a)(i) has engaged in serious criminal activity. The court may order that an application for an unexplained wealth restraining order be heard in closed court. See Part 5 of the **Open Courts Act 2013**. S. 40J inserted by No. 79/2014 s. 16.