Serious and Organised Crime (Unexplained Wealth) Act 2009 (South Australia)

Mechanically, the Serious and Organised Crime (Unexplained Wealth) Act 2009 establishes a civil regime in South Australia for: (1) obtaining unexplained wealth orders against persons whose wealth the Director of Public Prosecutions (DPP) reasonably suspects has not been lawfully acquired (s 9); (2) compelling information and documents relevant to identifying, tracing, locating or valuing a person’s wealth (ss 13-17); (3) restraining disposal or certain transactions in respect of property and safe custody facilities pending or to secure payment of an unexplained wealth order (ss 19-28); and (4) providing enforcement, disclosure, evidentiary and administrative rules that differ from ordinary criminal processes (ss 31, 40-43A, 41).

The statute’s long title states its purpose as providing for the making and enforcement of unexplained wealth orders, and the Act creates a three‑actor decision and enforcement pathway: the DPP authorises applications (s 9(1), s 12(2)); the Crown Solicitor , exercising an independent discretion , conducts applications to the District Court (s 7(1), s 9(1)); and the Commissioner of Police exercises investigative and enforcement powers (ss 13-17, 19-20, 29). Where the District Court finds components of a person’s wealth were not lawfully acquired, it may order the person to pay a specified amount to the Crown (s 9(2)-(3)), and unpaid amounts may be enforced under the Enforcement of Judgments Act 1991 (s 19(1)).

Key mechanical features worth noting up front, because they reshape who bears evidential burdens and how proceedings are run: (a) a civil presumption that each specified component of wealth is not lawfully acquired unless the person proves otherwise (s 9(7)); (b) proceedings under the Act are civil and decided on the balance of probabilities (s 41); (c) the Act allows powerful compulsory information‑gathering and search powers (ss 13-17) and monitoring orders (s 14); (d) courts may make orders and act ex parte (s 30); and (e) the Act provides strong protections for classified “criminal intelligence” and limits disclosure (s 6). The Act also contains immunity provisions for state actors and bars certain judicial review challenges (ss 39-40).

South Australia Serious and Organised Crime (Unexplained Wealth) Act 2009 An Act to provide for the making and enforcement of unexplained wealth orders; and for other purposes.

Contents Part 1—Preliminary 1 Short title 3 Interpretation 4 Meaning of effective control 5 Extra-territorial operation 6 Criminal intelligence 7 Role of Crown Solicitor Part 2—Unexplained wealth orders 8 Determining the value of property and benefits 9 Unexplained wealth orders 10 Appeals to Supreme Court Part 3—Investigative and enforcement powers Division 1—Preliminary 11 Application of Part 12 Limitation on exercise of powers and functions under Part Division 2—Investigative notices, orders and warrants 13 Notices to deposit holders 14 Monitoring orders 15 Orders for obtaining information 16 Warrants 17 Powers conferred by warrant 18 Exercise of jurisdiction Division 3—Enforcement powers 19 Enforcement of unexplained wealth orders 20 Restraining orders 21 Refusal to make an order for failure to give undertaking 22 Form of restraining order 23 Notice of restraining order 24 Right of objection 25 Variation or revocation of restraining order 26 Appeals to Supreme Court 27 Cessation of restraining order 28 Contravention of restraining order Division 4—General provisions relating to investigative and enforcement powers 29 Representation of Commissioner of Police 30 Ex parte proceedings 31 Immunity from liability 32 Making false or misleading statements 33 Failing to comply with notice or order Part 4—Reviews and expiry of Act 34 Annual review and report as to exercise of powers 35 Review of operation of Act 36 Expiry of Act 37 Authorisations by DPP Part 5—Miscellaneous 38 Manner of giving notices 39 Immunity from liability 40 Protection from proceedings etc 41 Proceedings under Act are civil proceedings 42 Ancillary orders 43 Consent orders 43A Use of evidence or information for purposes of Act 44 Costs 45 Credits to Victims of Crime Fund 46 Regulations Legislative history

The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Serious and Organised Crime (Unexplained Wealth) Act 2009. 3—Interpretation (1) In this Act, unless the contrary intention appears— benefit includes a service or advantage; corresponding unexplained wealth order means an order made under a law of another State, a Territory or the Commonwealth that is of a kind declared by the regulations to be within this definition; criminal intelligence means information relating to actual or suspected criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety; deposit holder means— (a) an ADI; or (b) a friendly society; or (c) an organisation that holds money in accounts on behalf of other persons; or (d) a person who carries on business as a pawnbroker; or (e) an institution of a kind declared by regulation to be a deposit holder; DPP means the Director of Public Prosecutions and includes a person acting in the position of Director of Public Prosecutions; effective control—see section 4; executive officer, in relation to a deposit holder or a corporation, means any person, by whatever name called and whether or not the person is a director of the deposit holder or corporation, who is concerned, or takes part, in the management of the deposit holder or corporation; gift includes a transaction (other than a transaction entered into in the ordinary course of trade or commerce) under which a person acquires property for less than a commercially adequate consideration; interest, in relation to property, means— (a) a legal or equitable estate or interest in the property; or (b) a right, power or privilege in connection with the property, whether present or future and whether vested or contingent; premises means any land, building, structure, vehicle, vessel or aircraft; property means real or personal property (tangible or intangible) including— (a) a chose in action; and (b) an interest in property; restraining order means an order made under section 20; safe custody facility includes any facility or arrangement through which a deposit holder accepts deposits or allows withdrawals and any other facility through which a deposit holder holds property on behalf of a person; unexplained wealth order means an order made under section 9; wealth of a person consists of the following: (a) all property that the person owns or has previously owned (including property acquired by the person before the commencement of this Act); (b) all other benefits that the person has at any time acquired (including benefits acquired by the person before the commencement of this Act); (c) all property that is, or has previously been, subject to the person's effective control (including property that became subject to the person's effective control before the commencement of this Act). (2) For the purposes of this Act, property that is or has been subject to the effective control of a person will be taken to have been acquired by that person when the property became subject to the effective control of the person. 4—Meaning of effective control (1) For the purposes of this Act, the following principles apply when determining whether property is subject to the effective control of a person: (a) property may be subject to the effective control of a person whether or not the person has an interest in the property; (b) property that is held on trust for the ultimate benefit of a person is taken to be subject to the effective control of the person; (c) if a person is 1 of 2 or more beneficiaries under a discretionary trust, the following undivided proportion of the trust property is taken to be subject to the effective control of the person:

(d)	property may be subject to the effective control of a person even if 1 or more other persons have joint control of the property.
(2)	In determining whether or not property is subject to the effective control of a person, regard may be had to—
(a)	securities (within the meaning of section 92 of the Corporations Act 2001 of the Commonwealth) in, or directorships of, a company that has an interest (whether direct or indirect) in the property; and
(b)	a trust that has a relationship to the property; and
(c)	family, domestic and business relationships between persons having an interest in the property, or in companies of the kind referred to in paragraph (a) or trusts of the kind referred to in paragraph (b), and other persons.

5—Extra-territorial operation It is the intention of the Parliament that this Act apply within the State and outside the State to the full extent of the extra‑territorial legislative capacity of the Parliament. 6—Criminal intelligence (1) No information provided by the Commissioner of Police to the DPP or the Crown Solicitor for the purposes of this Act may be disclosed to any person (except to the Attorney‑General, a court, a person conducting a review under Part 4 or a person to whom the Commissioner of Police authorises its disclosure) if the information is classified by the Commissioner of Police as criminal intelligence. (2) In any proceedings under this Act, the court determining the proceedings— (a) must, on the application of the Commissioner of Police, take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and (b) may take evidence consisting of, or relating to, information that is so classified by the Commissioner of Police by way of affidavit. (3) The Commissioner of Police may not delegate the function of classifying information as criminal intelligence for the purposes of this Act except to a Deputy Commissioner or Assistant Commissioner of Police. 7—Role of Crown Solicitor (1) For the avoidance of doubt, where this Act specifies that a power or function is to be exercised by the Crown Solicitor, the Crown Solicitor exercises an independent discretion in relation to that power or function and does not act on the instructions of any other person or body. (2) In proceedings under this Act the Crown Solicitor acts as a model litigant for, and on behalf of, the State. Part 2—Unexplained wealth orders 8—Determining the value of property and benefits The following provisions apply when determining the value of any property or benefits for the purposes of this Part: (a) the value of any property or benefit that has been disposed of, used, consumed or is for any other reason no longer available will be taken to be— (i) the value of the property or benefit at the time it was acquired; or (ii) the value of the property or benefit immediately before it was disposed of, used, consumed or otherwise ceased to be available, whichever is the higher; (b) the value of any other property or benefit will be taken to be— (i) the value of the property or benefit at the time it was acquired; or (ii) the value of the property or benefit on the day that the application for an unexplained wealth order was made, whichever is the higher. 9—Unexplained wealth orders (1) If the DPP reasonably suspects that a person has wealth that has not been lawfully acquired, the DPP may authorise the Crown Solicitor to make an application to the District Court under this section. (2) If, on an application by the Crown Solicitor under this section, the Court finds that any components of a person's wealth specified in the application have not been lawfully acquired, the Court may make an order (an unexplained wealth order) that the person pay to the Crown a specified amount. (3) If the Court makes findings as to a person's wealth as specified in subsection (2), the Court should make an unexplained wealth order specifying an amount equal to the value of those components of the person's wealth that have not been lawfully acquired unless the Court determines that it would be manifestly unjust to make such an order (in which case the Court may reduce the amount payable or decline to make the order, as the Court thinks fit). (4) The application— (a) must specify with sufficient particularity the components of the person's wealth to which the application relates; and (b) subject to subsection (6), must be served on the person and on any other persons that should, in the opinion of the Court, be served with the application. (5) The Court may allow the Crown Solicitor to subsequently vary the components of the person's wealth specified in the application (and may, in such a case, make any consequential orders as to service of the application as so varied that the Court thinks fit). (6) The Court may hear and determine an application in the absence of a party if— (a) the Court is satisfied that the person cannot be found; or (b) the person fails to appear after being given reasonable notice of the application. (7) For the purposes of this section, each component of a person's wealth specified in the application will be presumed not to have been lawfully acquired unless the person proves otherwise. (8) Property or a benefit that has been acquired by a person on the payment of any consideration will only be taken to have been lawfully acquired by the person for the purposes of this Part if the consideration given for the property or benefit was lawfully acquired. (9) Property or a benefit that has been acquired by a person as a prize or as the proceeds of any form of gaming will only be taken to have been lawfully acquired by the person for the purposes of this Part 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 gaming (as the case may be) was lawfully acquired. (10) Property or a benefit that has been acquired by a person as a gift or on the distribution of the estate of a deceased person will only be taken to have been lawfully acquired for the purposes of this Part if the donor of the gift or the deceased person (as the case may be) lawfully acquired the property or benefit. (11) If, in determining an application under this section relating to wealth of a person, the Court is satisfied— (a) that it is not reasonably possible for the person to establish that a component of his or her wealth was lawfully acquired (due to the effluxion of time, the circumstances in which that component was acquired or any other reason); and (b) that the person has acted in good faith, the Court may determine that that component should be excluded from the application. (12) The Court must not make an unexplained wealth order relating to— (a) property that has been forfeited under any Act or law (whether of the State or another jurisdiction); or (b) property or benefits in respect of which a pecuniary penalty order has been made against the person under the Criminal Assets Confiscation Act 2005; or (c) literary proceeds in respect of which a literary proceeds order has been made against the person under the Criminal Assets Confiscation Act 2005; or (d) property or benefits that have comprised (wholly or in part) the basis for a previous unexplained wealth order, or a corresponding unexplained wealth order. 10—Appeals to Supreme Court (1) The Crown Solicitor or a person subject to an unexplained wealth order may appeal to the Supreme Court against a decision of the District Court on an application under this Part. (2) An appeal lies as of right on a question of law and with permission on a question of fact. (3) An appeal must be commenced within the time, and in accordance with the procedure, prescribed by rules of the Supreme Court. (4) On an appeal, the Supreme Court may— (a) confirm, vary or revoke the decision subject to appeal; and (b) make any ancillary orders that the Supreme Court considers appropriate. Part 3—Investigative and enforcement powers Division 1—Preliminary 11—Application of Part Subject to this Part, the powers and functions specified in this Part may be exercised for the purpose of investigating, or restraining, wealth of a person either before or after an unexplained wealth order, or an application for an unexplained wealth order, has been made against the person. 12—Limitation on exercise of powers and functions under Part (1) Powers and functions under this Part may not be exercised before an unexplained wealth order has been made unless— (a) the powers and functions are exercised for the purpose of investigating, or restraining, wealth of a person who— (i) has been convicted of a serious offence or declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 in relation to a charge of a serious offence; or (ii) is, or has been, the subject of a control order; or (b) the DPP has authorised the exercise of those powers or functions. (2) The DPP may not authorise the exercise of powers and functions under this Part unless satisfied that the powers and functions are to be exercised for the purpose of investigating, or restraining, wealth of a person who the DPP reasonably suspects of being— (a) a person who engages or has engaged in serious criminal activity; or (b) a person who regularly associates, or has regularly associated, with persons who engage, or have engaged, in serious criminal activity; or (c) a person who is, or has been, a member of an organisation that is, at the time at which the authorisation of the DPP is sought, a declared organisation; or (d) a person who has acquired property or a benefit as a gift from a person of a kind referred to in paragraph (a), (b) or (c) or on the distribution of the estate of a deceased person who was a person of a kind referred to in paragraph (a), (b) or (c). (3) Information provided to the DPP under this section must not be disclosed to any person (except to the Attorney‑General, a person conducting a review under Part 4 or a person to whom the Commissioner of Police authorises its disclosure). (4) A court must not determine proceedings under this Part unless satisfied that the proceedings— (a) relate to investigating, or restraining, wealth of a person in relation to whom an unexplained wealth order has been made; or (b) are authorised under this section. (5) In this section— control order means a control order under the Serious and Organised Crime (Control) Act 2008; declared organisation has the same meaning as in the Serious and Organised Crime (Control) Act 2008; member, in relation to a declared organisation, has the same meaning as in the Serious and Organised Crime (Control) Act 2008; serious criminal activity means the commission of serious offences; serious offence has the same meaning as in the Criminal Assets Confiscation Act 2005. Division 2—Investigative notices, orders and warrants 13—Notices to deposit holders (1) A police officer of or above the rank of Superintendent may give a written notice to a deposit holder requiring the deposit holder to provide to the Commissioner of Police any information or documents relevant to any of the following: (a) determining whether an account is held by a specified person with the deposit holder; (b) determining whether a specified person is a signatory to an account; (c) if a person holds an account with the deposit holder—the current balance of the account; (d) determining whether any related accounts are held with the deposit holder and the names of those who hold those accounts. (2) A notice must— (a) state that the notice is given under this Act; and (b) specify the information or documents required to be provided; and (c) specify the form and manner in which the information or documents are to be provided; and (d) state that the information or documents must be provided within 14 days of the day on which the notice was given; and (e) if the notice specifies that information about the notice must not be disclosed—set out the effect of subsections (3) and (4); and (f) set out the effect of section 33. (3) If a notice given to a deposit holder under this section specifies that information about the notice must not be disclosed, a person who either— (a) discloses the existence or nature of the notice to another person; or (b) discloses information to another person from which the other person could infer the existence or nature of the notice, is guilty of an offence. Maximum penalty: $10 000 or imprisonment for 2 years. (4) Subsection (3) does not apply if the disclosure— (a) is necessary to comply with the notice; or (b) is made for the purpose of obtaining legal advice or legal representation in relation to the notice; or (c) is made for the purposes of, or in the course of, legal proceedings. 14—Monitoring orders (1) A court may, on application by the Commissioner of Police make an order (a monitoring order) requiring a deposit holder to report, as soon as practicable, transactions of a kind specified in the order relevant to identifying, tracing, locating or valuing a person's wealth. (2) An application to a court under this section must be accompanied by an affidavit that specifies how the transactions to which the application relates are relevant to identifying, tracing, locating or valuing a person's wealth. (3) A monitoring order must— (a) specify the kind of information the deposit holder is required to give; and (b) specify the form and manner in which the information is to be given; and (c) set out the effect of subsections (6) and (7); and (d) set out the effect of section 33. (4) Subject to subsection (5), a monitoring order remains in force for a period of not more than 6 months specified in the order. (5) A court that has made a monitoring order may, on application by the Commissioner of Police or the deposit holder, extend, vary or revoke the order. (6) If a monitoring order is made, a person who— (a) discloses the existence or nature of the order to another person; or (b) discloses information to another person from which the other person could infer the existence or nature of the order, is guilty of an offence. Maximum penalty: $10 000 or imprisonment for 2 years. (7) Subsection (6) does not apply if the disclosure— (a) is authorised by the order; or (b) is necessary to comply with the order; or (c) is made for the purpose of obtaining legal advice or legal representation in relation to the order; or (d) is made for the purposes of, or in the course of, legal proceedings. 15—Orders for obtaining information (1) A court may, on application by the Commissioner of Police, make an order of 1 or both of the following kinds: (a) an order requiring a person to give oral or affidavit evidence to the court on questions relevant to identifying, tracing, locating or valuing a person's wealth; (b) an order requiring a person to produce before the court documents or other materials relevant to identifying, tracing, locating or valuing a person's wealth. (2) An application to a court under this section must be accompanied by an affidavit that specifies how the evidence, documents or materials to which the application relates are relevant to identifying, tracing, locating or valuing a person's wealth. (3) If a person is ordered to give evidence or to produce documents or other materials under this section, the Commissioner of Police must ensure that a copy of the order is served on the person, in accordance with any directions of the court, and that the person is advised that the order was made under this section. (4) A person ordered to give evidence or to produce documents or other materials may not refuse to give the evidence, or to produce documents or materials, on the ground that the evidence, or the contents of the documents or materials, would tend to incriminate the person of an offence, but evidence so given or documents or materials so produced cannot be used against that person in proceedings in which that person is charged with an offence (other than proceedings for an offence the basis of which is a charge that the person knowingly provided false or misleading information in the evidence so given or the documents or materials so produced). (5) If a person is ordered to give evidence or to produce documents or other materials under this section, the court may order the Crown to pay the person's legal costs in connection with complying with that order (which may be costs as between solicitor and client) or such part of those costs as is determined by the court. 16—Warrants (1) A court may, on application by the Commissioner of Police, issue a warrant authorising— (a) the seizure of a document or article relevant to identifying, tracing, locating or valuing a person's wealth; (b) the search of a particular person, or particular premises, and the seizure of documents and articles of a kind referred to in paragraph (a) found in the course of the search. (2) Subject to this section, an application to a court under this section must be accompanied by an affidavit that specifies— (a) in the case of a warrant referred to in subsection (1)(a)—how the documents and articles to which the application relates are relevant to identifying, tracing, locating or valuing a person's wealth; or (b) in the case of a warrant referred to in subsection (1)(b)—why it is believed that the person or premises to which the application relates might have or contain documents or articles relevant to identifying, tracing, locating or valuing a person's wealth. (3) An application for a warrant may be made to a judicial officer of a court by telephone if, in the opinion of the applicant, a warrant is urgently required and there is not enough time to make the application personally. (4) If an application for a warrant is made by telephone— (a) the applicant must inform the judicial officer that he or she is acting on behalf of the Commissioner of Police, and the judicial officer, on receiving that information, is entitled to assume, without further inquiry, that the applicant is so acting; and (b) the applicant must inform the judicial officer— (i) in the case of a warrant referred to in subsection (1)(a)—how the documents and articles to which the application relates are relevant to identifying, tracing, locating or valuing a person's wealth; or (ii) in the case of a warrant referred to in subsection (1)(b)—why it is believed that the person or premises to which the application relates might have or contain documents or articles relevant to identifying, tracing, locating or valuing a person's wealth; and (c) if it appears to the judicial officer from the information given by the applicant that there are proper grounds to issue a warrant, the judicial officer must inform the applicant of the facts that justify, in the judicial officer's opinion, the issue of the warrant, and must not proceed to issue the warrant unless the applicant undertakes to make an affidavit verifying those facts; and (d) if the applicant gives such an undertaking, the judicial officer may then make out and sign a warrant, noting on the warrant the facts that justify, in the opinion of the judicial officer, the issue of the warrant; and (e) the warrant is taken to have been issued, and comes into force, when signed by the judicial officer; and (f) the judicial officer must inform the applicant of the terms of the warrant; and (g) the applicant must fill out and sign a warrant form (the duplicate warrant) that— (i) sets out the name of the judicial officer who issued the original and the terms of the warrant; and (ii) complies with any other requirements prescribed by regulation; and (h) the applicant must, as soon as practicable after the issue of the warrant, forward to the judicial officer an affidavit verifying the facts referred to in paragraph (c) and a copy of the duplicate warrant. (5) A judicial officer by whom a warrant is issued must file the warrant, or a copy of the warrant, and the affidavit verifying the facts referred to in subsection (4)(c), in the relevant court. 17—Powers conferred by warrant (1) A warrant authorises any police officer, with assistants the officer considers necessary— (a) to seize documents and other articles relevant to identifying, tracing, locating or valuing a person's wealth referred to in the warrant; (b) if the warrant authorises the search of a person—to search that person and seize anything suspected on reasonable grounds to be a document or other article relevant to identifying, tracing, locating or valuing a person's wealth; (c) if the warrant authorises the search of premises—to enter and search the premises and anything in the premises and seize anything suspected on reasonable grounds to be a document or other article relevant to identifying, tracing, locating or valuing a person's wealth. (2) A warrant must not be executed between the hours of 7 o'clock in the evening and 7 o'clock in the following morning unless the judicial officer by whom the warrant is issued expressly authorises its execution between those hours. (3) A police officer, or a person assisting a police officer, may use such force as is reasonably necessary for the execution of the warrant. (4) A police officer who executes a warrant— (a) must prepare a notice in the prescribed form containing— (i) the officer's name and rank; and (ii) the name of the judicial officer who issued the warrant and the date and time of its issue; and (iii) a description of anything seized under the warrant; and (b) must, as soon as practicable after execution of the warrant— (i) in the case of a warrant authorising search of a person—give the notice to the person; (ii) in any other case—give the notice to the occupier of the premises or leave it in a prominent position on those premises. (5) A warrant, if not executed at the expiration of 1 month from the date of its issue, then expires. 18—Exercise of jurisdiction The jurisdiction of a court under this Division may be exercised by a judicial officer sitting in chambers. Division 3—Enforcement powers 19—Enforcement of unexplained wealth orders (1) If an amount payable under an unexplained wealth order remains unpaid 21 days after the making of the order, the order may be enforced under the Enforcement of Judgments Act 1991. (2) If— (a) a person is subject to an unexplained wealth order; and (b) the Commissioner of Police applies to a court for an order under this subsection; and (c) the court is satisfied that particular property is subject to the effective control of the person, the court may make an order declaring that the whole, or a specified part, of that property is to be taken to be property of the person for the purposes of the Enforcement of Judgments Act 1991. (3) The Commissioner of Police must, on applying for an order under subsection (2) relating to particular property, give written notice of the application to— (a) the person who is subject to the unexplained wealth order; and (b) any person whom the Commissioner of Police has reason to believe may have an interest in the property; and (c) any other persons that should, in the opinion of the court, be given notice of the application. (4) The person who is subject to the unexplained wealth order, and any person who claims an interest in the property, may appear and adduce evidence at the hearing of the application. 20—Restraining orders (1) A court may, on application by the Commissioner of Police, make an order (a restraining order) preventing— (a) the disposal of specified property; or (b) specified kinds of transactions involving safe custody facilities, except in the manner and circumstances, if any, specified in the order. (2) A court may only make a restraining order if satisfied that the order is reasonably necessary to ensure payment of an amount that is, or may become, payable under an unexplained wealth order (and the application for the order must be accompanied by an affidavit setting out matters that would justify such a finding). (3) A restraining order may be subject to such conditions as the court thinks fit. (4) In determining whether or not to make a restraining order, or the terms of a restraining order, the court must have regard to any serious hardship that may be caused to any person as a result of the order. 21—Refusal to make an order for failure to give undertaking (1) A court may refuse to make a restraining order if the Crown refuses or fails to give the court an appropriate undertaking with respect to the payment of any costs that may be awarded against the Crown in accordance with section 44. (2) The Commissioner of Police may give such an undertaking on behalf of the Crown. 22—Form of restraining order (1) A restraining order must— (a) set out the terms of the order; and (b) subject to subsection (2)—include a statement of the court's reasons for issuing the order; and (c) if the order was made on an application made without notice to any person—set out an explanation of the right of objection under section 24. (2) A statement of the court's reasons for issuing the order must not contain information that must not be disclosed in accordance with section 6. (3) A copy of the affidavit that accompanied the application for the order must be attached to the restraining order unless disclosure of information included in the affidavit would be in breach of section 6. (4) If disclosure of information included in the affidavit would be in breach of section 6, an edited copy of the affidavit, from which the information that cannot be disclosed has been removed or erased, may be attached to the restraining order. 23—Notice of restraining order (1) If a court makes a restraining order prohibiting the disposal of property, the Commissioner of Police should give written notice of the order (including a copy of the order) to— (a) the person who is the owner of the property; and (b) any person who has an interest in the property; and (c) any other persons that should, in the opinion of the court, be given notice of the order. (2) If a court makes a restraining order prohibiting transactions, the Commissioner of Police should give written notice of the order (including a copy of the order) to— (a) the relevant deposit holder; and (b) any person who, but for the prohibition in the restraining order, would have had a legal entitlement to enter into the transaction; and (c) any other persons that should, in the opinion of the court, be given notice of the order. (3) For the purposes of this section, written notice of an order will be taken to have been given to a deposit holder or a corporation if it is given to an executive officer of the deposit holder or corporation (as the case requires). 24—Right of objection (1) If a restraining order is made on an application made without notice to any person, a person who has been, or should have been, given notice of the order under section 23 may lodge a notice of objection with the court that made the order within 14 days after becoming aware of the making of the order (or such longer period as the court may allow). (2) The grounds of the objection must be stated fully and in detail in the notice of objection. (3) A copy of the notice of objection must be served by the objector on the Commissioner of Police by registered post at least 7 days before the day appointed for hearing of the notice. (4) The court must, when determining a notice of objection, consider whether, in the light of the evidence presented by both the Commissioner of Police and the objector, sufficient grounds existed for the making of the restraining order. (5) The court may, on hearing a notice of objection— (a) confirm, vary or revoke the restraining order; and (b) make any other orders of a kind that could have been made by the court on the making of the restraining order. 25—Variation or revocation of restraining order (1) A court may vary or revoke a restraining order made by the court on application— (a) by the Commissioner of Police; or (b) by a person who was, or should have been, given notice of the order under section 23. (2) An application for variation or revocation of a restraining order may only be made by a person referred to in subsection (1)(b) with the permission of the court. (3) The court must, before varying or revoking a restraining order under this section, allow all parties a reasonable opportunity to be heard on the matter. (4) If an application for variation or revocation of a restraining order is made in order to allow the payment of legal costs of a person, the court may only vary or revoke the order if satisfied that the person has no other source of funds (within or outside the State) to which he or she could reasonably have recourse for the legal costs. 26—Appeals to Supreme Court (1) The Commissioner of Police or a person who has been, or should have been, given notice of an order under section 23 may appeal to the Supreme Court against a decision of a court under this Division. (2) An appeal lies as of right on a question of law and with permission on a question of fact. (3) An appeal must be commenced within the time, and in accordance with the procedure, prescribed by rules of the Supreme Court. (4) The commencement of an appeal under this section does not affect the operation of the restraining order to which the appeal relates. (5) On an appeal, the Supreme Court may confirm, vary or reverse the decision appealed against. 27—Cessation of restraining order (1) A restraining order, of a kind referred to in section 20(1)(a), relating to property will be taken to have been discharged— (a) in a case where no unexplained wealth order had been made when the restraining order was made—if 1 or more of the following occurs: (i) no application is made, within 21 days after the making of the restraining order, for an unexplained wealth order against an owner of the property, or a person who effectively controls the property; (ii) where application is made, within 21 days after the making of the restraining order, for an unexplained wealth order against an owner of the property, or a person who effectively controls the property—that application is withdrawn; (iii) the District Court refuses an application to make an unexplained wealth order against an owner of the property, or a person who effectively controls the property; or (b) in any other case—if 1 or more of the following occurs: (i) the unexplained wealth order is satisfied; (ii) the property is sold or disposed of to satisfy the unexplained wealth order; (iii) the unexplained wealth order is revoked, discharged or otherwise ceases to have effect. (2) A restraining order, of a kind referred to in section 20(1)(b), relating to transactions will be taken to have been discharged— (a) in a case where no unexplained wealth order had been made when the restraining order was made—if 1 or more of the following occurs: (i) no application is made, within 21 days after the making of the restraining order, for an unexplained wealth order against any person who has the legal authority to engage in the transactions; (ii) where application is made, within 21 days after the making of the restraining order, for an unexplained wealth order against a person who has the legal authority to engage in the transactions—that application is withdrawn; (iii) the District Court refuses an application to make an unexplained wealth order against a person who has the legal authority to engage in the transactions; or (b) in any other case—if 1 or more of the following occurs: (i) the unexplained wealth order is satisfied; (ii) the unexplained wealth order is revoked, discharged or otherwise ceases to have effect. 28—Contravention of restraining order (1) A person is guilty of an offence if the person, knowing of the existence of a restraining order— (a) deals with or permits a dealing with property that is subject to the order; or (b) engages in, facilitates or permits a transaction that is subject to the order, contrary to the terms of the order. Maximum penalty: $20 000 or imprisonment for 4 years. (2) A person is guilty of an offence if— (a) the person deals with or permits a dealing with property, or engages in, facilitates or permits a transaction, subject to a restraining order; and (b) by so doing, contravenes the order (whether or not the person knows or is reckless as to that fact); and (c) the person was given notice of the order under section 23. Maximum penalty: $10 000 or imprisonment for 2 years. (3) A dealing with property or a transaction contrary to this section is void against anyone except a person who acquires an interest in property in good faith for value and without notice of the terms of the order. (4) This section does not limit the jurisdiction of the Court to deal with a contravention of a restraining order as a contempt of court. Division 4—General provisions relating to investigative and enforcement powers 29—Representation of Commissioner of Police In proceedings under this Part, the Commissioner of Police may be represented— (a) by a police officer; or (b) by counsel. 30—Ex parte proceedings A court may make an order under this Part on an application made without notice to any person. 31—Immunity from liability No liability attaches to a person in relation to any action taken by the person under a notice or order under this Part or in the mistaken belief that action was required under a notice or order under this Part. 32—Making false or misleading statements A person who knowingly or recklessly makes a false or misleading statement (whether orally, in a document or in any other way) in, or in connection with, a notice or order under this Part is guilty of an offence. Maximum penalty: $5 000 or imprisonment for 1 year. 33—Failing to comply with notice or order A person who refuses or fails to comply with a notice or order under this Part is guilty of an offence. Maximum penalty: $5 000 or imprisonment for 1 year. Part 4—Reviews and expiry of Act 34—Annual review and report as to exercise of powers (1) The Attorney‑General must, before 1 July in each year (other than the calendar year in which this section comes into operation), appoint a retired judicial officer to conduct a review to determine whether powers under this Act were exercised in an appropriate manner during the period of 12 months preceding that 1 July. (2) The Attorney‑General, the DPP, the Crown Solicitor and the Commissioner of Police must ensure that a person appointed to conduct a review is provided with such information as he or she may require for the purpose of conducting the review. (3) A person conducting a review must maintain the confidentiality of information provided to the person that is classified by the Commissioner of Police as criminal intelligence. (4) A report on a review must be presented to the Attorney‑General on or before 30 September in each year. (5) The Attorney‑General must, within 12 sitting days after receipt of a report under this section, cause copies of the report to be laid before each House of Parliament. (6) In this section— judicial officer means a person appointed as a judge of the Supreme Court or the District Court or a person appointed as judge of another State or Territory or of the Commonwealth. 35—Review of operation of Act (1) The Attorney‑General must, as soon as practicable after the fourth anniversary of the commencement of this section, conduct a review of the operation and effectiveness of this Act. (2) The Attorney‑General, or any person conducting the review on behalf of the Attorney‑General, must maintain the confidentiality of information provided to the Attorney‑General or other person that is classified by the Commissioner of Police as criminal intelligence. (3) The Attorney‑General must prepare a report based on the review and must, within 12 sitting days after the report is prepared, cause copies of the report to be laid before each House of Parliament. 36—Expiry of Act This Act will expire 20 years after the date on which this section comes into operation. 37—Authorisations by DPP (1) An authorisation given by the DPP for the purposes of section 9 or section 12 lapses 3 years after the date on which it was given. (2) In any proceedings— (a) a certificate of the DPP certifying that the exercise of powers or functions specified in the certificate has been authorised in accordance with section 9 or section 12 is conclusive evidence of the matters so certified; and (b) an apparently genuine document purporting to be a certificate of the DPP under this subsection is to be accepted in any proceedings as such a certificate in the absence of proof to the contrary. (3) The DPP may not delegate any powers or functions of the DPP under section 9 or section 12. Part 5—Miscellaneous 38—Manner of giving notices A notice, order or other document required or authorised by this Act to be given to or served on a person may be given or served— (a) by delivering it personally to the person or an agent of the person; or (b) by leaving it for the person at the person's place of residence or business with someone apparently over the age of 16 years; or (c) by posting it to the person or an agent of the person at the person's or agent's last known place of residence or business; or (d) in any other manner prescribed by regulation. 39—Immunity from liability Except as specifically provided in this Act, no civil or criminal liability attaches to— (a) the Attorney‑General, the DPP, the Crown Solicitor, the Commissioner of Police or any other person exercising powers and functions under this Act; or (b) the Crown, in respect of an act or omission in good faith in the exercise or discharge, or purported exercise or discharge, of a power, function or duty conferred or imposed by or under this Act. 40—Protection from proceedings etc (1) No proceeding for judicial review or for a declaration, injunction, writ, order or other remedy may be brought to challenge or question— (a) a decision or determination, or purported decision or determination, of the DPP or the Crown Solicitor under this Act; or (b) procedures adopted by the DPP or the Crown Solicitor under this Act or purportedly adopted by the DPP or the Crown Solicitor under this Act; or (c) an act, omission, matter or thing incidental or relating to the operation of this section. (2) Neither the DPP nor the Crown Solicitor are required to provide procedural fairness in exercising powers or performing functions under this Act. 41—Proceedings under Act are civil proceedings Except in relation to an offence under this Act— (a) proceedings under this Act are civil proceedings; and (b) any question of fact to be decided by a court on an application under this Act is to be decided on the balance of probabilities; and (c) the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of this Act; and (d) the rules of evidence applicable in civil proceedings apply to proceedings under this Act. 42—Ancillary orders (1) A court may, when making an order under this Act or at any later time, make any ancillary orders that the court considers appropriate. (2) Without limiting subsection (1), the court may make an ancillary order requiring that information about an order not be disclosed to a particular person or class of persons. 43—Consent orders A court may make an order in proceedings under this Act with the consent of the parties to the proceedings (and such an order may be made without consideration of the matters that the court would otherwise be obliged to consider in the proceedings). 43A—Use of evidence or information for purposes of Act Despite any other Act or law, evidence or information obtained by the lawful exercise of powers under an Act or law (whether before or after the commencement of this section) and evidence or information obtained incidentally to such an exercise of powers— (a) may be used by law enforcement and prosecution authorities for the purposes of this Act; and (b) is not inadmissible in proceedings before a court under this Act merely because the evidence or information was not obtained for the purposes of this Act. 44—Costs A court may, if— (a) a person brings, or appears at, civil proceedings under this Act; and (b) the person is successful in those proceedings or in any aspect of those proceedings, order the Crown to pay the person legal costs in connection with the proceedings (which may be costs as between solicitor and client) or such part of those costs as is determined by the court. 45—Credits to Victims of Crime Fund (1) Subject to subsection (2), money recovered by the Crown under an unexplained wealth order must be applied, in accordance with guidelines issued by the Treasurer, towards the costs of administering this Act and the Serious and Organised Crime (Control) Act 2008 and the balance must be paid into the Victims of Crime Fund maintained under the Victims of Crime Act 2001. (2) Money recovered by the Crown under an unexplained wealth order that is shareable forfeiture proceeds within the meaning of Division 3A of Part 7 of the Criminal Assets Confiscation Act 2005 is to be dealt with in accordance with that Division. 46—Regulations (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) The regulations may— (a) be of general application or vary in their application according to prescribed factors; (b) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Attorney‑General, the DPP, the Crown Solicitor or the Commissioner of Police. Legislative history Notes • Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete. • Earlier versions of this Act (historical versions) are listed at the end of the legislative history. • For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or www.legislation.sa.gov.au. Expiry of Act The Serious and Organised Crime (Unexplained Wealth) Act 2009 will expire on 29.8.2030: see s 36. Legislation amended by principal Act The Serious and Organised Crime (Unexplained Wealth) Act 2009 amended the following: Criminal Assets Confiscation Act 2005 Principal Act and amendments New entries appear in bold. Year No Title Assent Commencement 2009 60 Serious and Organised Crime (Unexplained Wealth) Act 2009 26.11.2009 29.8.2010 (Gazette 5.8.2010 p3978) 2013 32 Serious and Organised Crime (Control) (Declared Organisations) Amendment Act 2013 1.8.2013 Sch 1 (cl 1)—11.8.2013 (Gazette 8.8.2013 p3468) 2019 21 Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2019 19.9.2019 Pt 12 (s 19)—19.9.2019: s 2(1) 2021 27 Unexplained Wealth (Commonwealth Powers) Act 2021 1.7.2021 Sch 1 (cl 5)—1.9.2021 (Gazette 18.8.2021 p3099) Provisions amended New entries appear in bold. Entries that relate to provisions that have been deleted appear in italics. Provision How varied Commencement Long title amended under Legislation Revision and Publication Act 2002 11.8.2013 Pt 1

s 2 omitted under Legislation Revision and Publication Act 2002 11.8.2013 Pt 4

s 36 amended by 21/2019 s 19 19.9.2019 Pt 5

s 43A inserted by 32/2013 Sch 1 cl 1 11.8.2013 s 45

s 45(1) s 45 amended and resdesignated as s 45(1) by 27/2021 Sch 1 cl 5(1), (2) 1.9.2021 s 45(2) inserted by 27/2021 Sch 1 cl 5(2) 1.9.2021 Sch 1 omitted under Legislation Revision and Publication Act 2002 11.8.2013 Historical versions 11.8.2013

19.9.2019

1 Serious and Organised Crime (Unexplained Wealth) Act 2009

South Australia Serious and Organised Crime (Unexplained Wealth) Act 2009 An Act to provide for the making and enforcement of unexplained wealth orders; and for other purposes.

Definitions and scope: the Act defines “wealth” broadly to include all property a person owns or has previously owned, all other benefits acquired at any time, and all property that is or has been subject to the person’s “effective control” (s 3, definition of wealth). “Property” is wide , real and personal, tangible and intangible, and includes choses in action and interests in property (s 3). “Benefit” expressly includes services or advantages. The Act has extra‑territorial reach to the full extent of the Parliament’s capacity (s 5).

Effective control: the Act sets principles for “effective control” rather than tying control to legal title. It states (a) property may be subject to a person’s effective control whether or not the person has a legal interest; (b) property held on trust for a person is taken to be subject to that person’s effective control; and (c) property may be subject to effective control even with joint controllers (s 4(1)-(2)). The statute permits regard to corporate securities and directorships, trusts, and family, domestic and business relationships when determining effective control (s 4(2)). Note the printed copy of s 4(1)(c) in this text shows a drafting gap where an undivided proportion for discretionary trust beneficiaries would be prescribed; practitioners should consult the official consolidated version if that point is material.

Reverse onus in a civil setting: applications for unexplained wealth orders must identify components of wealth with sufficient particularity (s 9(4)(a)). Once specified in the application, each component is presumed not to have been lawfully acquired unless the person proves otherwise (s 9(7)). The Act therefore imposes a civil reverse onus as to lawful acquisition of specified components, and the civil standard applies to fact‑finding (s 41(b)).

Burden about consideration and provenance: property acquired on payment of consideration is only lawfully acquired if the consideration itself was lawfully acquired (s 9(8)). Gifts, distributions from estates, gaming prizes and similar are treated expressly: property acquired as gift or by distribution is only lawfully acquired if the donor or deceased person lawfully acquired it (s 9(10)); prizes and gaming wins are lawful only if the money used to enter was lawfully acquired (s 9(9)).

Compulsory powers: the Act provides specific powers to obtain information from deposit holders (s 13), monitoring orders for deposit holders to report particular transactions for up to six months (s 14(4)), court orders compelling oral or affidavit evidence and production of documents (s 15), and warrants to search and seize documents or search persons and premises (s 16-17). The Act permits telephone warrant applications in urgent cases (s 16(3)-(4)) and use of reasonable force to execute warrants (s 17(3)).

Restraints and enforcement: a restraining order can prevent disposal of specified property or certain transactions involving safe custody facilities and is made to ensure payment of an amount payable under an unexplained wealth order (s 20(1)-(2)). Contravention of a restraining order carries criminal penalties (s 28). If an unexplained wealth order is made and unpaid after 21 days, the order may be enforced under the Enforcement of Judgments Act 1991 (s 19(1)), and property subject to effective control may be declared to be the person’s property for enforcement purposes (s 19(2)).

Evidence and procedure rules: proceedings under the Act are civil (s 41) and the ordinary criminal‑law rules of construction do not apply (s 41(c)). The Act permits ex parte applications (s 30), allows the Commissioner of Police to be represented by a police officer or counsel (s 29), and provides that evidence or information lawfully obtained under other laws may be used for purposes of the Act (s 43A). Classified “criminal intelligence” is subject to strict confidentiality and the Commissioner controls its classification and disclosure; courts are directed to take steps to maintain confidentiality in proceedings (s 6).

Checks, time limits and review: the DPP must authorise applications (s 9(1)) and authorisations lapse after three years (s 37(1)); the Act requires annual independent reviews of exercise of powers by appointment of a retired judicial officer with reports tabled in Parliament (s 34), and a formal review of operation and effectiveness after four years (s 35). The Act is scheduled to expire 20 years after the commencement of s 36 (s 36 and legislative notes).

Immunities and limits on judicial review: the Act contains immunity from liability for public officers acting in good faith (s 39) and a provision that limits proceedings for judicial review and other remedies challenging decisions or procedures of the DPP or Crown Solicitor under the Act (s 40(1)). Section 40(2) states that neither the DPP nor the Crown Solicitor are required to provide procedural fairness when exercising powers or performing functions under this Act.

Taken together, these main concepts establish a civil, information‑gathering and asset‑restraint regime that places the evidential burden upon persons whose wealth is specified, empowers coercive searches and monitoring, protects certain state material from disclosure, and limits judicial challenge to DPP and Crown Solicitor decision‑making under the Act.

Directly affected persons: any person whose wealth (as defined) is specified in an application under s 9 is directly affected. “Wealth” is defined to include property the person owns or has previously owned, other benefits acquired at any time, and property subject to the person’s effective control (s 3). Because “effective control” can look beyond legal title to trusts, corporate relationships, directorships and family, domestic or business relationships (s 4(1)-(2)), individuals connected to trusts, companies, and pooled ownership arrangements may be affected even where they lack formal title.

Persons giving or receiving property: donors, beneficiaries and persons who distribute estates are implicated by the statutory tests. The Act treats property received as a gift or by distribution as lawfully acquired only if the donor or deceased person lawfully acquired it (s 9(10)). Similarly, where property was acquired by payment of consideration, the consideration must itself have been lawfully acquired (s 9(8)). Therefore family members, trustees, executors, and others in the chain of title or benefit may need to produce provenance evidence.

Deposit holders and financial institutions: institutions defined as “deposit holders” , authorised deposit taking institutions (ADIs), friendly societies, organisations holding money in accounts on behalf of others, pawnbrokers, and institutions declared by regulation (s 3) , are subject to notices (s 13), monitoring orders (s 14) and, indirectly, to restraining orders that prohibit specified transactions (s 20, s 23). Such entities will have duties to respond within statutory timeframes, keep confidentiality where required, and face criminal penalties for unauthorised disclosure (s 13(3), s 14(6)).

State actors: the DPP, Crown Solicitor and Commissioner of Police are the principal state decision‑makers. The DPP must be satisfied before authorising pre‑order investigative powers (s 12(2)) and authorises Crown Solicitor applications under s 9(1). The Crown Solicitor exercises an independent discretion in exercising powers under the Act (s 7(1)). The Commissioner of Police both initiates applications for monitoring orders, warrants and restraining orders (ss 14, 16, 20) and executes warrants and enforcement actions (ss 17, 19).

Persons with interests in property or third parties: where restraining orders are made the Commissioner must, where appropriate, give notice to persons with interests in the property and to deposit holders and other persons who would have legal entitlements but for the restraint (s 23). Those persons may object (s 24) and may apply to vary or revoke restraining orders with the court’s permission (s 25). Third parties who acquire property in good faith for value and without notice of the terms of the order are protected in relation to third‑party transfers (s 28(3)).

Legal representatives and the Crown: the Crown Solicitor acts as model litigant for the State in proceedings under the Act (s 7(2)), but s 40(2) states that neither the DPP nor the Crown Solicitor are required to provide procedural fairness in exercising powers or performing functions under the Act. Courts, judicial officers and registries are also affected because ex parte applications are permitted (s 30) and courts may be required to manage classified criminal intelligence in private (s 6(2)).

Regulated bodies and the Treasurer: recovered funds go first towards costs of administering this Act and related Acts, as guided by Treasurer’s guidelines, with the balance payable to the Victims of Crime Fund (s 45(1)). The Treasurer therefore has a role by issuing guidelines for application of recovered monies, and regulations may extend the class of deposit holders (s 3, s 46).

Practitioners and compliance staff in affected entities must note the timing and form requirements (e.g. s 13(2) requiring 14 days to comply with deposit holder notices) and criminal penalties for non‑compliance or improper disclosure (s 13(3), s 14(6), s 28). The Act’s procedural design affects a wide set of private parties, not merely those ultimately ordered to pay money.

Duties to produce information and documents: deposit holders are obliged to provide specified information or documents in the form and manner set out by a written notice from a Superintendent or above, and must do so within 14 days unless otherwise stated (s 13(1)-(2)). The Commissioner of Police may apply for monitoring orders requiring deposit holders to report specified kinds of transactions as soon as practicable (s 14(1), (3)); monitoring orders may run for up to six months and be extended (s 14(4)-(5)). Courts may order persons to give oral or affidavit evidence and to produce documents relevant to identifying, tracing, locating or valuing wealth (s 15).

Compelled testimony and evidentiary protections: persons ordered to give evidence or produce documents cannot refuse on the ground that evidence or contents would tend to incriminate them (s 15(4)), but such evidence or material cannot be used against that person in criminal proceedings, save for proceedings relating to knowingly providing false or misleading information (s 15(4)). This creates a compelled civil disclosure duty with a limited immunity for subsequent criminal use.

Obligations following monitoring and restraining orders: restraining orders prevent disposal of specified property or specified transactions involving safe custody facilities except as permitted by the order (s 20(1)). Deposit holders and persons with potential entitlements must be given notice in accordance with s 23, and those who are given notice become subject to the prohibitions and to the criminal penalties for contravention (s 23, s 28).

Proof and disclosure duties: the person whose wealth is specified has the onus to prove lawful acquisition of each specified component (s 9(7)). Where it is not reasonably possible to establish lawful acquisition due to the passage of time or other circumstances, and the person has acted in good faith, the court may exclude the component from the application (s 9(11)). Courts must take steps to avoid disclosing information the Commissioner classifies as criminal intelligence (s 6(2), s 22(2)-(4)).

DPP and Crown Solicitor duties and discretions: the DPP must authorise Crown Solicitor applications where required (s 9(1), s 12(2)). Authorisations lapse after three years (s 37(1)); the DPP cannot delegate powers under ss 9 or 12 (s 37(3)). The Crown Solicitor exercises independent discretion when specified by the Act (s 7(1)) and acts as a model litigant in proceedings under the Act (s 7(2)).

Procedural protections and rights to legal costs: if a person is ordered to give evidence or produce materials under s 15 the court may order the Crown to pay the person’s legal costs for complying with that order, possibly on a solicitor and client basis (s 15(5)). Additionally, if a person brings civil proceedings under the Act and is successful, the court may order the Crown to pay legal costs as it sees fit (s 44).

Confidentiality and secrecy obligations: notices and monitoring orders may specify that information about them must not be disclosed; unauthorised disclosure is an offence with a maximum penalty of $10 000 or two years imprisonment (s 13(3); s 14(6)). The Commissioner of Police controls classification of criminal intelligence, and the DPP and Crown Solicitor are prohibited from disclosing criminal intelligence provided by the Commissioner (s 6(1)) except to limited recipients.

Evidentiary presumptions and outcomes: if the court finds components were not lawfully acquired, it should make an unexplained wealth order specifying an amount equal to the value of those components unless it would be manifestly unjust to do so, in which case the court may reduce or decline to make the order (s 9(3)). The Act specifies valuation rules for property and benefits, including rules for disposed or consumed property (s 8).

Protections for third parties and good‑faith acquirers: dealings contrary to restraining orders are void against anyone except a person who acquires an interest in good faith for value and without notice of the order (s 28(3)). Persons who claim an interest in property subject to an enforcement application can appear and give evidence (s 19(4)) and have mechanisms for objection and variation of restraining orders (ss 24-25).

Immunities and limits on judicial review: state actors exercising powers in good faith are protected from civil and criminal liability except as specifically provided (s 39). Section 40(1) limits judicial review challenges to DPP or Crown Solicitor decisions or procedures under the Act, and s 40(2) states that neither the DPP nor Crown Solicitor are required to provide procedural fairness in exercising powers or performing functions under the Act.

Taken together, the Act creates extensive duties on deposit holders and other third parties to produce information and obey restraints, places the evidential burden on affected persons to prove lawful acquisition, provides limited protections for compelled disclosures, and insulates certain state decisions and information from ordinary administrative law review.

Civil enforcement: unexplained wealth orders are civil monetary orders directing a person to pay a specified amount to the Crown (s 9(2)-(3)). If unpaid 21 days after the making of the order, it may be enforced under the Enforcement of Judgments Act 1991 (s 19(1)). The Commissioner can apply to have particular property declared to be property of the person for enforcement purposes if the court is satisfied the property is subject to the person’s effective control (s 19(2)). Enforcement via standard judgment enforcement processes thus becomes available for unpaid unexplained wealth orders.

Criminal offences tied to investigative and restraining regimes: the Act specifies a number of criminal offences and maximum penalties:

Unauthorised disclosure of the existence or nature of a deposit holder notice (s 13(3)) or a monitoring order (s 14(6)): maximum penalty $10 000 or imprisonment for 2 years.
Making false or misleading statements in or connected with a notice or order under Part 3: maximum penalty $5 000 or imprisonment for 1 year (s 32).
Refusal or failure to comply with a notice or order under Part 3 (for example, failing to provide documents to a deposit holder notice): maximum penalty $5 000 or imprisonment for 1 year (s 33).
Contravention of a restraining order where the person knows of its existence and deals with property or engages in or permits transactions contrary to the order: maximum penalty $20 000 or imprisonment for 4 years (s 28(1)).
A second contravention offence where the person dealt with property or engaged in a transaction that contravenes the order and was given notice of the order, irrespective of knowledge: maximum penalty $10 000 or imprisonment for 2 years (s 28(2)).

Voidness and third‑party protections: dealings contrary to restraining orders are void against anyone except a good‑faith acquirer for value and without notice (s 28(3)). The court retains contempt jurisdiction to address contraventions of its orders (s 28(4)).

Search, seizure and warrant execution: warrants authorise seizure of documents and articles, search of persons and premises and seizure of relevant material found in the course of the search (s 17(1)). Execution may involve reasonable force (s 17(3)). Warrant execution requires procedural steps such as provision of a prescribed notice to the person searched or the occupier and expiry after one month if not executed (s 17(4)-(5)).

Costs orders and recovery: the court may order the Crown to pay legal costs for a person compelled to give evidence or produce materials under s 15(5), and s 44 allows a court to order the Crown to pay legal costs where a person brings or appears in civil proceedings under the Act and is successful. Section 21 allows a court to refuse to make a restraining order if the Crown refuses to give an appropriate undertaking with respect to payment of costs; the Commissioner of Police may give the undertaking on behalf of the Crown.

Application of recovered money: recovered money under unexplained wealth orders is to be applied, according to Treasurer’s guidelines, towards administration costs of this Act and the Serious and Organised Crime (Control) Act 2008 and the balance paid into the Victims of Crime Fund (s 45(1)). There is a specified exception: recovered money that is “shareable forfeiture proceeds” under the Criminal Assets Confiscation Act 2005 is to be dealt with under that scheme (s 45(2)).

Immunity and procedural limits: s 39 provides that, except as specified in the Act, no civil or criminal liability attaches to certain public actors (Attorney‑General, DPP, Crown Solicitor, Commissioner of Police) or the Crown for acts or omissions in good faith. Moreover, s 40(1) restricts proceedings for judicial review or other remedies to challenge DPP or Crown Solicitor decisions under this Act. These provisions affect enforcement by limiting the remedies available to affected persons to contest certain executive decisions.

Evidentiary conclusive certificate: under s 37(2) a certificate of the DPP certifying that an exercise of powers or functions has been authorised is conclusive evidence of the matters so certified, and an apparently genuine certificate is to be accepted in the absence of proof to the contrary. That provision streamlines enforcement and evidentiary proof of authorisation.

In summary, the Act couples civil monetary remedies and judicial enforcement with criminal penalties for non‑compliance and unauthorised disclosure, provides mechanisms to seize and restrain property pending enforcement, and includes statutory immunities and evidentiary shortcuts that affect enforcement dynamics.

Interaction with criminal law and confiscation regimes: the Act expressly interfaces with the Criminal Assets Confiscation Act 2005. The court must not make unexplained wealth orders in relation to property already forfeited or subject to pecuniary penalty or literary proceeds orders under the Criminal Assets Confiscation Act 2005, or in respect of property that formed the basis of a previous unexplained wealth order (s 9(12)). Section 45(2) provides that money recovered that is “shareable forfeiture proceeds” under Division 3A of Part 7 of the Criminal Assets Confiscation Act 2005 is to be dealt with under that Division, indicating a recognition of an existing forfeiture sharing framework.

Civil vs criminal character: the Act stresses that proceedings under it are civil (s 41(a)). It specifies that questions of fact are resolved on the balance of probabilities (s 41(b)) and that criminal‑law rules of construction do not apply (s 41(c)). Nevertheless, the Act creates criminal offences relating to contravention and non‑disclosure (ss 13(3), 14(6), 28, 32, 33), so overlapping civil and criminal regimes coexist.

Use of evidence from other powers: s 43A permits evidence or information obtained lawfully under other Acts or laws, and evidence obtained incidentally to such exercises of power, to be used by law enforcement and prosecution authorities for purposes of this Act. It also states such evidence is not inadmissible merely because it was not obtained for purposes of the Act. This provision allows cross‑use of material gathered under other statutory powers, subject to the lawful exercise of those powers.

Interaction with enforcement legislation: s 19(1) makes explicit that unexplained wealth orders unpaid after 21 days may be enforced under the Enforcement of Judgments Act 1991. Section 19(2) permits a court to declare particular property subject to a person’s effective control to be the person’s property for the purposes of the Enforcement of Judgments Act 1991. These links give unexplained wealth orders access to ordinary execution mechanisms.

Confidentiality and evidence: s 6 constrains disclosure of “criminal intelligence” provided by the Commissioner of Police to the DPP or Crown Solicitor, limiting its disclosure except to specified parties. Courts must take steps to maintain confidentiality where requested by the Commissioner, including private hearings, and may admit such evidence by affidavit (s 6(2)). That mechanism interacts with standard open justice and disclosure rules that would otherwise apply in civil proceedings.

Administrative law and judicial review: s 40(1) restricts proceedings for judicial review or for declarations, injunctions and other remedies to challenge or question decisions or procedures of the DPP or Crown Solicitor under this Act, which limits administrative‑law remedies in relation to some decisions. The Act also states the DPP may not delegate powers under ss 9 or 12 (s 37(3)) and that the Crown Solicitor acts independently where the Act specifies that a power or function is to be exercised by the Crown Solicitor (s 7(1)).

Trust law and corporate law considerations: the Act’s concept of effective control permits courts to have regard to trust relationships, securities and directorships, family and business relationships (s 4(2)). This expands the factual matrix beyond legal title and will bring trust and corporate records, director relationships and ultimate beneficial owner information into play when courts assess effective control and lawful acquisition.

Regulatory and criminal‑intelligence regimes: the Act permits regulations to declare institutions to be deposit holders and to confer discretions to the Attorney‑General, the DPP, the Crown Solicitor or the Commissioner of Police (s 46(2)(b)). The confidentiality rules in s 6 interact with any legislative or policy frameworks governing criminal intelligence and law enforcement secrecy.

Financial sector requirements: deposit holders must comply with notices and monitoring orders (ss 13-14). These requirements sit alongside other financial‑sector obligations (anti‑money laundering, reporting of suspicious matters, privacy and secrecy laws). The Act contains offences for unauthorised disclosure of notices or orders (ss 13(3), 14(6)), but also allows disclosure for compliance, legal advice or legal proceedings (ss 13(4), 14(7)). Practitioners should reconcile statutory obligations here with obligations under privacy, banking secrecy or reporting laws, noting s 43A’s cross‑admissibility of lawfully obtained evidence.

In sum, the Act deliberately stitches into existing civil enforcement, criminal confiscation and law‑enforcement evidence regimes while creating distinct rules on evidence, disclosure, and judicial review. Practitioners must map the Act onto criminal asset regimes, enforcement of judgments, trust and corporate records, and confidentiality regimes to identify overlapping duties, immunities and procedural constraints.

The legislative history in the statutory text identifies a small number of amendments and subsequent statutes affecting the Act.

2013 (No 32 , Serious and Organised Crime (Control) (Declared Organisations) Amendment Act 2013): insertions included s 43A (use of evidence or information for purposes of Act), which was inserted by Sch 1 cl 1 and commenced 11 August 2013 (see Legislative history and the "Provisions amended" table noting s 43A inserted by 32/2013 Sch 1 cl 1, 11.8.2013). The insertion allows law enforcement and prosecution authorities to use evidence obtained under other Acts in proceedings under this Act.
2019 (No 21 , Statutes Amendment (Attorney‑General's Portfolio) (No 2) Act 2019): s 36 (expiry) was amended by s 19 of that amending Act on 19 September 2019 (as recorded in the "Provisions amended" table). The Act’s overall expiry provisions have been modified in consequence; the Act is scheduled to expire 20 years after the operation of s 36 and the notes indicate expiry on 29.8.2030.
2021 (No 27 , Unexplained Wealth (Commonwealth Powers) Act 2021): s 45 was amended and redesignated as s 45(1) by Sch 1 cl 5(1),(2), and s 45(2) was inserted by Sch 1 cl 5(2) commencing 1 September 2021 (legislative history). The changes affect how recovered money is to be applied, making an express link to shareable forfeiture proceeds and the Criminal Assets Confiscation Act 2005.

Other editorial amendments: references and obsolete cross‑references were managed by the Legislation Revision and Publication Act 2002 with changes noted for 11 August 2013 (for example, omission of s 2 and restructuring of schedules as shown in the legislative notes).

Commencement and expiry: the principal Act received assent on 26 November 2009 and commenced on 29 August 2010 (Gazette 5.8.2010 p 3978) as recorded in the legislative history. The Act will expire 20 years after the date on which s 36 comes into operation, with notes indicating expiry on 29.8.2030 (s 36, and the expiry note in the Legislative history).

Practical implication of the amendment history: the main substantive additions post‑2009 were s 43A (2013), clarifying admissibility and cross‑use of lawfully obtained evidence, and adjustments to the disposition of recovered funds in 2021 linking to the Commonwealth powers and the Criminal Assets Confiscation Act 2005. The DPP’s authorisation and non‑delegation rules (s 37) and protections for criminal intelligence (s 6) appear in the current text as enacted and preserved.

Practitioners should consult the consolidated, current version of the Act and associated regulations for any further technical amendments or delegated instruments declared under s 46, because legislative notes caution that references to other instruments may not be updated automatically.

The Act as provided does not list any cases or judicial decisions. The statutory text, however, sets out specific procedural routes and limits that frame likely litigation pathways and interlocutory disputes:

Appeals from District Court decisions on unexplained wealth orders lie to the Supreme Court: an appeal is as of right on a question of law and with permission on a question of fact, and must be commenced according to Supreme Court rules (s 10). On appeal, the Supreme Court may confirm, vary or revoke the decision and make ancillary orders (s 10(4)).
Decisions of courts under Division 3 (restraining orders) may be appealed to the Supreme Court on similar terms (s 26). The commencement of an appeal does not stay the restraining order (s 26(4)).
A person with a potentially affected interest can file a notice of objection to an ex parte restraining order within 14 days of becoming aware of it (s 24), and the court must reassess the grounds for the making of the restraining order at that hearing (s 24(4)-(5)).
While s 40(1) provides that no proceeding for judicial review or certain remedies may be brought to challenge or question decisions or procedures of the DPP or Crown Solicitor under this Act, the Act nevertheless preserves domestic appeal routes under the Act (ss 10 and 26) and allows civil litigation to decide statutory questions on the balance of probabilities (s 41). The restriction in s 40(1) therefore limits administrative‑law avenues but does not remove the statutory appeal paths.

Because the Act confines proceedings under it as civil (s 41) and provides specific appellate routes, litigation under the Act is likely to centre on: (a) interpretation and application of “effective control” (s 4), (b) the sufficiency and particularity of components of wealth specified in s 9(4), (c) the operation and validity of monitoring orders, restraining orders and search warrants (ss 14, 16, 20), (d) whether proof of lawful acquisition has been discharged where the statutory presumption applies (s 9(7)), (e) claims that material was classified criminal intelligence and cannot be disclosed in the form sought (s 6), and (f) appeals on questions of law to the Supreme Court (s 10).

Practitioners handling matters under the Act should therefore anticipate interlocutory litigation over disclosure, confidentiality, the form and sufficiency of applications, and the court’s handling of in camera material. Given the Act’s restriction on judicial review, challenges to executive decisions as administrative actions may be constrained, but statutory appeal provisions remain available and will be the primary route to challenge findings and orders under the Act.

Civil reverse onus and balance of probabilities (s 9(7); s 41): once a component of wealth is specified in an application, the person must prove lawful acquisition. Although proceedings are civil and resolved on the balance of probabilities (s 41(b)), the statutory presumption in s 9(7) shifts an evidential burden to the respondent. Practitioners must not assume criminal‑law standards or the presumption of innocence apply to these elements.
Effective control reaches beyond legal title (s 4): the Act treats trust property held for ultimate benefit as subject to effective control and permits regard to securities, directorships, trusts and family, domestic and business relationships (s 4(1)-(2)). Records of informal control arrangements, nominee structures and relational facts may be material, and formal title is not dispositive.
Criminal‑intelligence confidentiality can limit disclosure (s 6): the Commissioner of Police controls what is “criminal intelligence” and that information need not be disclosed to the DPP or Crown Solicitor other than in limited circumstances (s 6(1)). Courts must take steps to maintain confidentiality and may hear evidence in private (s 6(2)). Practitioners may find key parts of the state’s case shielded from disclosure in ordinary form.
Procedural fairness expressly disapplied for DPP and Crown Solicitor actions (s 40(2)): the Act states neither the DPP nor the Crown Solicitor are required to provide procedural fairness when exercising powers or performing functions under this Act. This is a statutory limit on procedural protections commonly expected in administrative decision‑making, and clients should be advised on the constrained scope for administrative‑law relief (notwithstanding statutory appeals under the Act).
Restrictions on judicial review (s 40(1)): the Act bars proceedings for judicial review challenging DPP or Crown Solicitor decisions or procedures under the Act. Practitioners should therefore prioritise the statutory appeal mechanisms and interlocutory remedies available under the Act (ss 10, 26, 24), and not rely on conventional administrative‑law challenges.
Authorisation and non‑delegation (s 12, s 37): powers under Part 3 cannot be used pre‑order unless the subject is in limited categories (s 12(1)(a)) or the DPP has authorised them (s 12(1)(b)). Authorisations lapse after three years (s 37(1)) and the DPP may not delegate powers under ss 9 or 12 (s 37(3)). Proof of proper authorisation may be conceded by a certificate in s 37(2) which is conclusive evidence, creating an evidentiary shortcut.
Notice, form and timing traps for deposit holders (s 13): deposit holder notices must state the form and manner of production and give 14 days to comply (s 13(2)(c)-(d)). Notices can be made confidential, and unauthorised disclosure is criminal (s 13(3)). Compliance teams must follow the exact procedural requirements and limit disclosure only to permitted channels (s 13(4)).
Compelled evidence with limited use immunity (s 15): evidence or materials obtained under s 15 cannot be used against the person in criminal proceedings, except for offences of knowingly providing false or misleading information (s 15(4)). That immunity does not prevent other uses in civil contexts under the Act and may not protect against derivative use in other investigations not governed by the Act; s 43A, however, permits use of lawfully obtained evidence for purposes of the Act.
Restraining orders and commercial activity (ss 20, 28): restraining orders may prohibit transactions involving safe custody facilities and property disposal, and contravention carries substantial penalties including imprisonment (s 28). Commercial actors must be alert to notices and the possible voidness of dealings contrary to restraining orders, except for bona fide purchasers without notice (s 28(3)).
Drafting gap in the provided text of s 4(1)(c): the version provided here shows an incomplete strand where the Act was to prescribe an undivided proportion of discretionary trust property taken to be subject to a beneficiary’s effective control. Practitioners faced with trust‑related issues should consult the consolidated statutory text and legislative instruments to confirm the intended proportion or application.
Interaction with existing confiscation regimes (s 9(12), s 45(2)): unexplained wealth orders cannot be made where property has been forfeited under another Act, or where a pecuniary penalty order or literary proceeds order has already been made under the Criminal Assets Confiscation Act 2005 (s 9(12)). Recovered funds may be allocated under specific rules if they qualify as shareable forfeiture proceeds (s 45(2)).
Ex parte applications and time limits (s 30, s 24): courts may make orders without notice (s 30). Where that happens, persons must act quickly to lodge notices of objection within 14 days of becoming aware (s 24(1)). Practitioners must be ready for expedited objection hearings and should monitor registers and notices closely.

The Act creates powerful civil coercive tools and several statutory deviations from ordinary administrative and criminal procedure. Careful attention to definitions, authorisations, secrecy provisions and procedural steps is critical to avoid adverse outcomes.

For persons whose wealth may be specified, and for advisers and deposit holders, compliance requires both preventive and reactive steps. Below are practical actions grounded in the Act’s requirements and timelines.

For individuals and their advisers

Keep contemporaneous provenance records: because s 9(7) places on the person the task of proving lawful acquisition once assets are specified, maintain documentary evidence of source of funds, contracts, sale agreements, loan documentation, trustee minutes, beneficiary distributions and tax returns. Where property was acquired by consideration, ensure records show the lawful source of the consideration (s 9(8)). For gifts, keep donor provenance to demonstrate lawful acquisition of the gifted asset (s 9(10)).
Audit trust arrangements and control facts: given the “effective control” concept (s 4), maintain records that show whether beneficiary rights are purely discretionary or if there are documented patterns of distribution, and document any formal control that might be asserted by third parties. If you are a beneficiary of a discretionary trust, collect evidence showing how distributions were made and any separation between legal and effective control.
Prepare for expedited objection windows: ex parte restraining orders (s 30) can be made and a notice of objection must be lodged within 14 days of awareness (s 24(1)). Make internal arrangements for rapid detection of restraining orders and for instructing counsel quickly to file objections and applications to vary or revoke orders (s 25).
Plan for compelled disclosure and legal costs: where a court orders production of documents or evidence under s 15, the court may order the Crown to pay legal costs in complying (s 15(5)). Seek the court’s order for costs early and preserve evidence of legal expenses. Understand the limited use immunity for criminal proceedings in s 15(4).
Manage relationships with deposit holders: if you have accounts or property handled by deposit holders, ensure these institutions have clear powers of attorney or a functioning communications protocol with your legal representatives to respond to notices and to assert any legal privilege or confidentiality claims as appropriate (s 13).

For deposit holders and financial institutions

Establish a compliance point of contact: deposit holder notices (s 13) and monitoring orders (s 14) must be complied with in specified form and time (14 days for notices, immediate reporting for transactions under monitoring). Nominate an executive officer authorised to receive such notices and ensure postal and personal service details are up to date (see s 23(3) for notice to executive officers).
Train staff on secrecy and disclosure limits: unauthorised disclosure of the existence or nature of a deposit holder notice or monitoring order is a criminal offence (s 13(3), s 14(6)). Train staff on permitted disclosures (s 13(4), s 14(7)) including that disclosure is allowed for compliance with the notice, legal advice or legal proceedings but not otherwise.
Keep records and produce material in the manner directed: notices will specify the form and manner of production (s 13(2)(c)); comply exactly to preserve the public or legal protection offered by s 31 (immunity in good faith). If some information is subject to other legal duties (privacy, secrecy), seek immediate legal advice to balance obligations, noting s 43A permits use of evidence lawfully obtained under other laws.
Process monitoring orders: build systems to detect transactions of the kind specified in a monitoring order and to report them “as soon as practicable” (s 14(1)). Monitoring orders may last up to six months and can be extended (s 14(4)-(5)).

For Crown and prosecuting authorities

Document authorisations carefully: the DPP must authorise pre‑order use of powers in many cases (s 12(1)-(2)); authorisations lapse after three years (s 37(1)) and cannot be delegated (s 37(3)). Maintain certifying documentation and be ready to produce the DPP certificate that is conclusive evidence in proceedings (s 37(2)).
Redact criminal intelligence appropriately: where information is classified by the Commissioner of Police as criminal intelligence (s 6), follow the Act’s confidentiality obligations and ensure the court receives the appropriate unredacted material in camera if required, while providing edited affidavits for public documents as permitted (s 22(3)-(4)).

For courts and judges

Provide clear reasons subject to secrecy constraints: restraining orders must, subject to s 22(2), include the court’s reasons, but those reasons must not include information that cannot be disclosed under s 6. Attach the supporting affidavit unless it would breach s 6, and if so provide an edited affidavit (s 22(3)-(4)).
Consider hardship and legal costs when making restraining orders: the court must have regard to serious hardship (s 20(4)) and may refuse to make a restraining order if the Crown refuses an undertaking to pay costs (s 21). If ordering compelled disclosure under s 15, the court may direct the Crown to pay legal costs in complying (s 15(5)).

Common practical steps for all affected parties

Check the consolidated Act and regulations for any declared classes of deposit holders or further procedural prescriptions under s 46 that may affect compliance duties.
Maintain a litigation‑ready bundle of records that establish lawful acquisition, including bank records, contracts, tax returns, trust deeds, distribution minutes, and independent valuations (s 8 provides valuation rules for consumed or disposed property).
For cross‑jurisdictional or extra‑territorial matters, bear in mind the Act’s stated extra‑territorial application to the full extent of legislative capacity (s 5), and be prepared to coordinate disclosure and enforcement across jurisdictions consistent with other laws.

By aligning record‑keeping, notice procedures, staff training and rapid legal engagement with the statutory provisions cited above, affected individuals and entities can reduce the risk of adverse findings, criminal exposure for non‑compliance, and costly enforcement.

Serious and Organised Crime (Unexplained Wealth) Act 2009

Plain English Summary

Deep Dive

What it does

Current sections

Serious and Organised Crime (Unexplained Wealth) Act 2009

Source text: opening excerpt

1 Serious and Organised Crime (Unexplained Wealth) Act 2009

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply