40ZContravention of unexplained wealth restraining order

40Z Contravention of unexplained wealth restraining order (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— (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— (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. Pt 4A Div. 1A (Heading and ss 40ZAA–40ZAAH) inserted by No. 26/2024 s. 24. Division 1A—Unexplained wealth order S. 40ZAA inserted by No. 26/2024 s. 24. 40ZAA Application for unexplained wealth order (1) The DPP or an appropriate officer may apply to a court for an unexplained wealth order if a police officer suspects on reasonable grounds that— (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. (2) An application under subsection (1) must be supported by an affidavit of a police officer— (b) stating that the police officer suspects that— (c) setting out the grounds on which the police officer has that suspicion. (3) On an application under subsection (1), the DPP or an appropriate officer must give notice of the application to the respondent to the application. (4) The respondent is entitled to appear and to give evidence at the hearing of the application but the absence of the respondent does not prevent the court from making an unexplained wealth order. S. 40ZAAB inserted by No. 26/2024 s. 24. 40ZAAB Determination of application for unexplained wealth order (1) This section applies if— (a) an application is made under section 40ZAA(1) for an unexplained wealth order to be made against a person; and (b) not less than 30 days have elapsed since notice of the application for the unexplained wealth order was given to the person under section 40ZAA(3); and (c) if the person was named in an application for an unexplained wealth restraining order made under section 40IA, there are no pending applications for a section 40S exclusion order relating to that unexplained wealth restraining order. (2) If this section applies, the court must assess— (a) whether the respondent to the application for the unexplained wealth order has wealth that exceeds their lawfully acquired wealth; and (b) whether the total value of any wealth that is not lawfully acquired is $200 000 or more. (3) If the court is satisfied that the respondent has wealth of $200 000 or more that is not lawfully acquired, the court may— (a) order the respondent to pay the State an amount equal to the value of the wealth that is not lawfully acquired; or (b) order the respondent to pay a lesser amount, if the court determines that it would be manifestly unjust to order the respondent to pay the amount referred to in paragraph (a); or (c) refuse to make an unexplained wealth order, if the court determines that making the order would be manifestly unjust. (4) In determining whether to make an order under subsection (3)(a) or (b) or to refuse to make an unexplained wealth order, the court must not have regard to any of the following— (a) wealth for which the applicant has not provided evidence; (b) whether the respondent's unexplained wealth was obtained through, or associated with, the commission of an offence for which the respondent has not been convicted or found guilty; (c) whether the respondent has engaged in serious criminal activity; (d) the effect of the unexplained wealth order on the standard of living of the respondent or a dependant of the respondent. (5) The court may order the respondent to appear before the court to assist the court in determining whether to make an unexplained wealth order against the respondent. (6) A respondent's wealth is presumed to have not been lawfully acquired unless the respondent satisfies the court to the contrary. The court may order that an application for an unexplained wealth order be heard in closed court. See Part 5 of the **Open Courts Act 2013**. S. 40ZAAC inserted by No. 26/2024 s. 24. 40ZAAC Assessment of unexplained wealth (1) For the purposes of this Part, in assessing whether a person's wealth over a particular period has exceeded the wealth the person lawfully acquired over that period, regard must be had to the following— (a) the value of property in which the person has an interest at the time of the assessment, being the greater of— (i) the acquisition value of the property; or (ii) the current value of the property; (b) the value of property consumed or disposed of by the person or at the direction of the person during the period, being the greater of— (i) the acquisition value of the property; or (ii) the value of the property when it was consumed or disposed of; (c) any payments made by the person or at the direction of the person during the period to service or extinguish a loan or debt or any other obligation of the person or of another person; (d) any other expenses paid for by or at the direction of the person during the period; (e) the value of any benefits the person derived during the period; (f) the value of any benefits another person derived during the period at the direction of the person; (g) the value of any services and advantages the person obtained during the period; (h) the value of any services and advantages another person obtained during the period at the direction of the person. (2) An assessment of a person's wealth in accordance with this section must not include— (a) the value of any property confiscated under this Act or another enactment or an enactment of another jurisdiction; or (b) the value of any property, benefit, service or advantage that has been the subject of an unexplained wealth order or pecuniary penalty order made against the person. (3) In this section, property in which a person has an interest includes property under the effective control of the person. (4) For the purposes of an assessment of a person's wealth under this section— (a) property acquired more than 10 years prior to the application date is taken to have been lawfully acquired; and (b) a benefit derived more than 10 years prior to the application date is taken to have been lawfully derived; and (c) a service or advantage obtained more than 10 years prior to the application date is taken to have been lawfully obtained. (5) In this section— ***application date***, for a person whose wealth is being assessed, means the date on which an application is made for an unexplained wealth order to be made against the person. S. 40ZAAD inserted by No. 26/2024 s. 24. 40ZAAD Evidentiary requirements for respondent to unexplained wealth order (1) At a hearing of an application for an unexplained wealth order, the respondent to the application may claim that wealth that is the subject of the application was lawfully acquired by the respondent. (2) Subject to subsection (3), the respondent must provide documentary evidence of any transactions alleged by the respondent to have occurred that would support the claim that the respondent's wealth was lawfully acquired. (3) The court hearing the application may accept evidence other than documentary evidence of those transactions if— (a) that other evidence is provided in addition to documentary evidence of those transactions; 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. A respondent's wealth is taken to have been lawfully acquired if the wealth was acquired more than 10 years prior to the date on which an application is made for an unexplained wealth order to be made against the respondent—see section 40ZAAC(4). S. 40ZAAE inserted by No. 26/2024 s. 24. 40ZAAE Privilege against self-incrimination If a respondent to an unexplained wealth order is charged with an offence, the following evidence 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— (a) any statement made or evidence given by the respondent in response to the application for an unexplained wealth order; (b) any information, document or thing obtained as a direct or indirect consequence of any statement or evidence referred to in paragraph (a). S. 40ZAAF inserted by No. 26/2024 s. 24. 40ZAAF Unexplained wealth order debt due to Crown (1) An amount payable by a person to the State under an unexplained wealth order is, for all purposes, to be taken to be a civil debt due by the person to the Crown. (2) An unexplained wealth order made by a court must be taken to be a judgment debt and may be enforced as if it were an order made by it in civil proceedings instituted by the Crown against the respondent to recover a debt due by the respondent to the Crown. S. 40ZAAG inserted by No. 26/2024 s. 24. 40ZAAG Payment of amount payable under unexplained wealth order (1) A person subject to an unexplained wealth order must pay the amount payable to the State under the order— (a) within 90 days of the date on which the order was made; or (b) as otherwise ordered by the court. (2) On the person paying an amount payable under the unexplained wealth order, the court may— (a) make an order setting aside the unexplained wealth restraining order made under section 40IA in respect of the person; or (b) make such other order or orders as it considers appropriate in relation to the operation of the unexplained wealth restraining order made under section 40IA. S. 40ZAAH inserted by No. 26/2024 s. 24. 40ZAAH Consent order relating to forfeiture of property (1) The court that made an unexplained wealth order may make an order under subsection (2) by consent of— (a) the applicant for the unexplained wealth order; and (b) the respondent to the unexplained wealth order. (2) The order may reflect an agreement between the persons referred to in subsection (1) that property in which a person has an interest and that is the subject of an unexplained wealth restraining order made under section 40IA is forfeited to the Minister to satisfy an amount payable by that person under an unexplained wealth order. Division 2—Forfeiture of unexplained wealth S. 40ZA (Heading) amended by No. 26/2024 s. 25(1). S. 40ZA inserted by No. 79/2014 s. 16. 40ZA Forfeiture of unexplained wealth—serious criminal activity or property not lawfully acquired S. 40ZA(1) amended by No. 26/2024 s. 25(2). (1) Subject to subsection (2), property that is the subject of an unexplained wealth restraining order made under section 40I 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). S. 40ZAB inserted by No. 26/2024 s. 26. 40ZAB Property may be forfeited to satisfy unexplained wealth order (1) Subject to subsection (2), property in which a person has an interest and that is the subject of an unexplained wealth restraining order made under section 40IA is forfeited to the Minister if— (a) an unexplained wealth order is made against the person; and (b) either— (i) the court has made a consent order under section 40ZAAH under which the person consents to the forfeiture of the property to satisfy an amount payable under the unexplained wealth order; or (ii) the person has not paid the amount payable under the unexplained wealth order by the date that payment is due. (2) Property subject to an unexplained wealth restraining order is forfeited under subsection (1) only to the extent that the property or a specified part of that property is required to satisfy the amount payable under the unexplained wealth order. S. 40ZB inserted by No. 79/2014 s. 16. 40ZB Declaration that property has been forfeited S. 40ZB(1) amended by No. 26/2024 s. 27. (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 or 40ZAB. (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. Section 40C provides that an unexplained wealth restraining order may be made in respect of property or an interest in property. S. 40ZB(3) amended by No. 26/2024 s. 27. (3) On an application under subsection (1), the court, if satisfied that the property has been forfeited to the Minister under section 40ZA or 40ZAB, must make a declaration accordingly. S. 40ZC inserted by No. 79/2014 s. 16. 40ZC Application for exclusion from unexplained wealth forfeiture (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. S. 40ZC(1A) inserted by No. 26/2024 s. 28. (1A) Subject to subsections (1B) and (2), if property is forfeited to the Minister under section 40ZAB, 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. S. 40ZC(1B) inserted by No. 26/2024 s. 28. (1B) A person cannot make an application under subsection (1A) if the person was named in the application for the relevant unexplained wealth restraining order as the person suspected of having wealth that is not lawfully acquired. (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. S. 40ZC(3) amended by No. 44/2022 s. 17(1). (3) Subject to subsections (4) and (4A), 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. S. 40ZC(4A) inserted by No. 44/2022 s. 17(2). (4A) The court may not grant a person leave under subsection (3) to make an application in respect of property that is money if the money was forfeited more than 6 months before the application for leave. (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 (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. (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)— (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. S. 40ZD inserted by No. 79/2014 s. 16. 40ZD Determination of application for exclusion from unexplained wealth forfeiture S. 40ZD(1) substituted by No. 26/2024 s. 29(1). (1) On an application under section 40ZC, the court may make an order excluding the applicant's interest in property from the operation of the unexplained wealth forfeiture if the court is satisfied that— (a) the property was lawfully acquired by the applicant; or (b) in the case of an application relating to an unexplained wealth order, it would be manifestly unjust to forfeit the property. (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.