This Act refers to the Commonwealth Parliament the power to make express amendments to the Commonwealth Proceeds of Crime Act so it can create a national "unexplained wealth" regime and related information‑gathering powers. Mechanically, it enables production orders, notices to financial institutions, disclosure and information‑sharing, and creates temporal and termination controls for when those referral powers operate.
It affects individuals with substantial unexplained assets, financial institutions required to disclose records, State and Commonwealth enforcement agencies, and magistrates and governors who exercise key procedural and timing decisions.
This Act is a referral instrument. It does not itself create new unexplained-wealth offences or confiscation powers at State level. Instead, it refers specified subject‑matter to the Commonwealth Parliament for the purposes of section 51(xxxvii) of the Commonwealth Constitution so the Commonwealth can make express amendments to the Commonwealth Proceeds of Crime Act 2002 (the CPoC Act). The Parliament of New South Wales states the main purpose in s 1(2): to refer matters relating to unexplained wealth and information gathering to the Commonwealth (s 1(2); s 4(1)(c)). The referral is implemented by text set out in Schedules 1-3 which are expressed as proposed amendments to the CPoC Act.
Mechanically, the Act does three things. First, it makes the reference(s) to the Commonwealth Parliament (s 4(1)(a)-(c)). Those references cover: (a) the matters the CPoC Act would cover if amended in the terms of Schedules 1 and 2; (b) the matters as in Schedule 3; and (c) matters relating to unexplained wealth and information gathering, but only to the extent of making laws by express amendment of the CPoC Act (s 4(1)). Second, it sets definitions and parameters for what the State considers “unexplained wealth” and “information gathering” for the purposes of the referral (ss 3, 5, 6). Third, the Act supplies a framework for a national cooperative scheme: Schedules add production‑order powers, notices to financial institutions, disclosure rules and parliamentary oversight to the CPoC Act text (Schedules 1 and 2; cl 1-20 of Schedule 2).
The Act also contains governance mechanics and temporal limits. Text reference 1 and the amendment reference terminate on the sixth anniversary of commencement unless extended by proclamation (s 9(1); s 11). The Governor may extend, shorten or revoke earlier termination proclamations (ss 10-13). The Governor also has limited power to proclaim rollback of particular express amendments so they do not apply to specified proceedings under the CPoC Act (s 7, and Schedule 3 provisions such as ss 14G and 14J). The State retains a regulation power for transitional and application matters (s 14).
Current sections
Direct links to the current provisions in Unexplained Wealth (Commonwealth Powers) Act 2018.
(2) The main purpose of this Act is to refer certain matters relating to unexplained wealth and information gathering to the Parliament of the Commonwealth for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth.
2
Commencement
2 Commencement
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3
Definitions
3 Definitions
3 Definitions
(1) In this Act—
amendment reference means the reference to the Parliament of the Commonwealth of the matters covered by section 4 (1) (c).
assent date means the date of assent to this Act.
commencement day means the day on which section 4 (1) comes into operation.
Commonwealth Proceeds of Crime Act means the Proceeds of Crime Act 2002 of the Commonwealth, as in force from time to time.
express amendment of the Commonwealth Proceeds of Crime Act means the direct amendment of the text of that Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act or by an instrument under a Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of the Commonwealth Proceeds of Crime Act.
pre-assent version of the Commonwealth Proceeds of Crime Act means the Proceeds of Crime Act 2002 of the Commonwealth, as originally enacted and as subsequently amended by amendments enacted at any time before the assent date.
prescribed termination day means the day on which text reference 1 and the amendment reference are to terminate as set out in section 9 (1).
reference means—
(a) text reference 1, or
(b) text reference 2, or
(c) the amendment reference.
relevant offence means an offence of a kind specified in section 8.
text reference 1 means the reference to the Parliament of the Commonwealth of the matters covered by section 4 (1) (a).
text reference 2 means the reference to the Parliament of the Commonwealth of the matters covered by section 4 (1) (b).
unexplained wealth—see section 5.
unexplained wealth provisions means—
(a) section 20A and Part 2-6 of the Commonwealth Proceeds of Crime Act, and
(b) the other provisions of that Act in so far as they relate to section 20A and Part 2-6 of that Act, and
(c) instruments made under that Act for the purposes of a provision referred to in paragraph (a) or (b).
Note—
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) Notes included in this Act (except in Schedules 1–4) do not form part of this Act.
4
Reference of matters
4 Reference of matters
4 Reference of matters
(1) The following matters are referred to the Parliament of the Commonwealth—
(a) the matters to which the pre-assent version of the Commonwealth Proceeds of Crime Act would relate if express amendments were made to it in the terms, or substantially in the terms, of the text set out in Schedules 1 and 2 to this Act but excluding matters to which that version otherwise relates,
(b) the matters to which the pre-assent version of the Commonwealth Proceeds of Crime Act would relate if express amendments were made to it in the terms, or substantially in the terms, of the text set out in Schedule 3 to this Act but excluding matters to which that version otherwise relates,
(c) the matters relating to unexplained wealth (not including a matter excluded by subsection (2)) and to information gathering, but only to the extent of the making of laws with respect to those matters by making express amendments of the Commonwealth Proceeds of Crime Act.
(2) The following matters are excluded for the purposes of subsection (1) (c)—
(a) the matter of including a provision in section 20A or Part 2-6 of the Commonwealth Proceeds of Crime Act that requires a person to pay an amount otherwise than by order of a court,
(b) the matter of including a provision in section 20A or Part 2-6 of the Commonwealth Proceeds of Crime Act that requires or permits property to be restrained, forfeited or seized otherwise than by order of a court.
(3) The operation of each paragraph of subsection (1) is not affected by any other paragraph.
(4) The reference of a matter under subsection (1) has effect only—
(a) if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth), and
(b) if and to the extent that the matter is included in the legislative powers of the Parliament of the State.
(5) To avoid doubt, it is the intention of the Parliament of the State that—
(a) the Commonwealth Proceeds of Crime Act may be expressly amended, or have its operation otherwise affected, at any time after the commencement of subsection (1) by provisions of Commonwealth Acts the operation of which is based on legislative powers that the Parliament of the Commonwealth has apart from under the references under subsection (1), and
(b) the Commonwealth Proceeds of Crime Act may have its operation affected, otherwise than by express amendment, at any time after the commencement of subsection (1) by provisions of instruments made or issued under that Act.
(6) Despite any other provision of this section, a reference under subsection (1) has effect for a period—
(a) beginning at the beginning of the commencement day, and
(b) ending at the beginning of the day fixed under this Act as the day on which the reference is to terminate,
but no longer.
5
Meaning of “unexplained wealth”
5 Meaning of “unexplained wealth”
5 Meaning of “unexplained wealth”
(1) For the purposes of section 4 (1) (c), unexplained wealth means property or wealth that might not have been lawfully acquired.
(2) For the purposes of subsection (1) and section 4 (2) (b), the meaning of lawfully acquired, property and wealth includes, but is not limited to, the meaning of those terms in the pre-assent version of the Commonwealth Proceeds of Crime Act.
6
Meaning of “information gathering”
6 Meaning of “information gathering”
6 Meaning of “information gathering”
For the purposes of section 4 (1) (c), information gathering means the production or provision of information for the purposes of, or relevant to, the taking of action, or the institution of proceedings, under a law of the State.
7
Rollback of particular express amendments
7 Rollback of particular express amendments
7 Rollback of particular express amendments
(1) For the purposes of section 14G of the Commonwealth Proceeds of Crime Act, the Governor may, by proclamation published on the NSW legislation website, declare that an express amendment of that Act (other than Subdivision B of Division 2 of Part 1-4) is not to apply to proceedings covered by subsection (3), (4) or (5) of that section.
Note—
To be effective for the purposes of section 14G of the Commonwealth Proceeds of Crime Act, the proclamation must come into force in the period of 6 months beginning on the day the amendment is enacted. On the coming into force of the proclamation, that Act applies to the proceedings as if the amendment had not been enacted.
(2) For the purposes of section 14J of the Commonwealth Proceeds of Crime Act, the Governor may, by proclamation published on the NSW legislation website, declare that an express amendment of that Act (other than Subdivision B of Division 2 of Part 1-4) is not to apply to—
(a) an application covered by subsection (3) of that section, or
(b) an order made as a result of an application referred to in paragraph (a) of this subsection, or
(c) a notice covered by subsection (4) of that section.
Note—
To be effective for the purposes of section 14J of the Commonwealth Proceeds of Crime Act, the proclamation must come into force in the period of 6 months beginning on the day the express amendment is enacted. On the coming into force of the proclamation, that Act applies to the application, order and notice as if the amendment had not been enacted.
8
Relevant offences
8 Relevant offences
8 Relevant offences
For the Commonwealth Proceeds of Crime Act, a serious criminal offence, within the meaning of the Criminal Assets Recovery Act 1990, section 6(2), is specified by this Act, other than—
(a) an offence specified in paragraph (c) or (h) of the definition, and
(b) an offence specified in paragraph (i) of the definition, but only to the extent to which the offence relates to an offence specified in paragraph (c) or (h) of the definition.
s 8: Subst 2022 No 55, Sch 4.3.
9
Termination of text reference 1 and amendment reference
9 Termination of text reference 1 and amendment reference
9 Termination of text reference 1 and amendment reference
(1) Subject to earlier termination under subsection (2), text reference 1 and the amendment reference terminate on the day that is the sixth anniversary of the commencement day or on a later day fixed by the Governor by proclamation under section 11 (1).
(2) Text reference 1 or the amendment reference terminates on a day that is earlier than the prescribed termination day if the Governor fixes that earlier day by proclamation under section 12 (1) (a) or (b) or section 13 (2) or (4) as the day on which the reference is to terminate.
10
Termination of text reference 2
10 Termination of text reference 2
10 Termination of text reference 2
(1) The Governor may, at any time, by proclamation published on the NSW legislation website, fix a day as the day on which text reference 2 is to terminate.
(2) The Governor may, by proclamation published on the NSW legislation website, revoke a proclamation published under subsection (1).
(3) A revoking proclamation has effect only if published before the day fixed under subsection (1).
(4) The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection.
11
Extension of period of reference by proclamation
11 Extension of period of reference by proclamation
11 Extension of period of reference by proclamation
(1) The Governor may, at any time before the prescribed termination day, by proclamation published on the NSW legislation website, fix a day that is later than the prescribed termination day as the day on which text reference 1 and the amendment reference are to terminate.
(2) More than one proclamation may be made under subsection (1).
12
Earlier termination of reference by proclamation
12 Earlier termination of reference by proclamation
12 Earlier termination of reference by proclamation
(1) The Governor may, at any time, by proclamation published on the NSW legislation website, fix a day that is earlier than the prescribed termination day as the day on which—
(a) text reference 1 is to terminate, or
(b) the amendment reference is to terminate.
(2) The Governor may, by proclamation published on the NSW legislation website, revoke a proclamation published under subsection (1), in which case the revoked proclamation is taken (for the purposes of section 9 (2)) never to have been published.
(3) A revoking proclamation has effect only if published before the day fixed under subsection (1).
(4) The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection.
(5) A proclamation under subsection (1) has effect despite any earlier proclamation published under section 11 (1).
13
Termination in particular circumstances
13 Termination in particular circumstances
13 Termination in particular circumstances
(1) Nothing in this section limits, or affects the operation of, section 9, 10, 11 or 12.
(2) The Governor may, by proclamation published on the NSW legislation website, fix a day as the day on which text reference 1 and the amendment reference are to terminate if the Commonwealth Parliament enacts an express amendment of the Commonwealth Proceeds of Crime Act that, in the opinion of the Governor, is inconsistent with the fundamental attributes of the unexplained wealth provisions.
(3) Without limiting subsection (2), an express amendment of the Commonwealth Proceeds of Crime Act that is inconsistent with the fundamental attributes of the unexplained wealth provisions includes an amendment to section 20A or Part 2-6 of that Act that has the effect of allowing a restraining order, payment order, seizure order or forfeiture order to be made under those provisions otherwise than by order of a court.
(4) For the purposes of section 14F of the Commonwealth Proceeds of Crime Act, the Governor may, by proclamation published on the NSW legislation website, fix a day as the day on which both text reference 1 and the amendment reference are to terminate, or the amendment reference only is to terminate, if the Commonwealth Parliament enacts an express amendment of section 14G or 14J (about rollback), or Division 2 of Part 4-3 (about sharing proceeds), of the Commonwealth Proceeds of Crime Act.
(5) The Governor may, by proclamation published on the NSW legislation website, revoke a proclamation published under subsection (2) or (4), in which case the revoked proclamation is taken (for the purposes of section 9 (2)) never to have been published.
(6) A revoking proclamation has effect only if published before the day fixed under subsection (2) or (4).
(7) The revocation of a proclamation published under subsection (2) or (4) does not prevent publication of a further proclamation under that subsection.
(8) A proclamation under subsection (2) or (4) has effect despite any earlier proclamation published under section 11 (1).
14
Regulations
14 Regulations
14 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) Without limiting subsection (1), the regulations may deal with matters of a transitional, application or savings nature relating to an offence becoming, or ceasing to be, a relevant offence.
Schedule 1
Text for amendments extending the main unexplained wealth provisions to certain offences against the laws of participating States
Schedule 1 Text for amendments extending the main unexplained wealth provisions to certain offences against the laws of participating States
Schedule 1 Text for amendments extending the main unexplained wealth provisions to certain offences against the laws of participating States
Schedule 2
Text for amendments concerning information gathering under the national cooperative scheme on unexplained wealth
Schedule 2 Text for amendments concerning information gathering under the national cooperative scheme on unexplained wealth
Schedule 2 Text for amendments concerning information gathering under the national cooperative scheme on unexplained wealth
sch.2-sec.1-frag-sdiv
Subdivision D—Other matters
sch.2-sec.1-frag-sdiv Subdivision D—Other matters
Subdivision D—Other matters
14M
Information gathering by participating States and self-governing Territories
14M Information gathering by participating States and self-governing Territories
14M Information gathering by participating States and self-governing Territories
Schedule 1 has effect.
sch.2-sec.6-frag-sch-pt
Part 1—Production orders
sch.2-sec.6-frag-sch-pt Part 1—Production orders
Part 1—Production orders
sch.2-sec.6-frag-sch-pt-oc.2
Part 2—Notices to financial institutions
sch.2-sec.6-frag-sch-pt-oc.2 Part 2—Notices to financial institutions
Part 2—Notices to financial institutions
15
Making false statements in notices
15 Making false statements in notices
15 Making false statements in notices
A person commits an offence if—
(a) the person makes a statement (whether orally, in a document or in any other way); and
(b) the statement—
(i) is false or misleading; or
(ii) omits any matter or thing without which the statement is misleading; and
(c) the statement is made in, or in connection with, a notice under clause 12.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
16
Disclosing existence or nature of notices
16 Disclosing existence or nature of notices
16 Disclosing existence or nature of notices
A person commits an offence if—
(a) the person is given a notice under clause 12; and
(b) the notice specifies that information about the notice must not be disclosed; and
(c) the person discloses the existence or nature of the notice.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
17
Failing to comply with notices
17 Failing to comply with notices
17 Failing to comply with notices
(1) A person commits an offence if—
(a) the person is given a notice under clause 12; and
(b) the person fails to comply with the notice.
Penalty: Imprisonment for 6 months or 30 penalty units, or both.
Note: Sections 137.1 and 137.2 of the Criminal Code also create offences for providing false or misleading information or documents.
(2) It is a defence to an offence against subclause (1) if—
(a) the person fails to comply with the notice only because the person does not provide the information or a document within the period specified in the notice; and
(b) the person took all reasonable steps to provide the information or document within that period; and
(c) the person provides the information or document as soon as practicable after the end of that period.
Note: A defendant bears an evidential burden in relation to the matters in subclause (2) (see subsection 13.3(3) of the Criminal Code).
sch.2-sec.6-frag-sch-pt-oc.3
Part 3—Disclosure of information
sch.2-sec.6-frag-sch-pt-oc.3 Part 3—Disclosure of information
Part 3—Disclosure of information
18
Disclosure
18 Disclosure
18 Disclosure
(1) This clause applies if a person obtains information—
(a) as a direct result of the exercise of a power (by the person or someone else), or performance (by the person) of a function, under Part 1 or 2; or
(b) as a result of a disclosure, or a series of disclosures, under this clause.
(2) The person may disclose the information to an authority described in an item of the following table for a purpose described in that item if—
(a) the person believes on reasonable grounds that the disclosure will serve that purpose; and
(b) a court has not made an order prohibiting the disclosure of the information to the authority for that purpose.
| Recipients and purposes of disclosure |
| Item | Authority to which disclosure may be made | Purpose for which disclosure may be made |
| 1 | Authority of a State or *self-governing Territory that has a function under a *corresponding law of the State or Territory | Any one or more of the following purposes—(a) engaging in proceedings under that corresponding law;(b) engaging in proceedings for the forfeiture of things under a law of that State or Territory;(c) deciding whether to institute proceedings of a kind referred to in paragraph (a) or (b) |
| 2 | Authority of the Commonwealth with one or more functions under this Act | Facilitating the authority’s performance of its functions under this Act |
| 3 | Authority of the Commonwealth, or of a State or *self-governing Territory, that has a function of investigating or prosecuting offences against a law of the Commonwealth, State or Territory | Assisting in the prevention, investigation or prosecution of an offence against that law that is punishable on conviction by imprisonment for at least 3 years or for life |
| 4 | Australian Taxation Office | Protecting public revenue |
(3) In a *criminal proceeding against a person who produced or made available a document under a *production order, none of the following that is disclosed under this clause is admissible in evidence against the person—
(a) the document;
(b) information contained in the document.
(4) Subclause (3) does not apply in a proceeding under, or arising out of, section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) in relation to producing the document or making it available.
Note: Subclauses (3) and (4) reflect subclause 5(2).
(5) To avoid doubt—
(a) this clause does not prohibit the disclosure under section 266A of any information disclosed under this clause; and
(b) this clause does not affect the admissibility in evidence of any information, document or thing obtained as an indirect consequence of a disclosure under this clause.
19
Parliamentary supervision of the operation of this Schedule
19 Parliamentary supervision of the operation of this Schedule
19 Parliamentary supervision of the operation of this Schedule
(1) The operation of this Schedule is subject to the oversight of the Parliamentary Joint Committee on Law Enforcement.
(2) The Committee may require an authority of a *participating State or *self-governing Territory that is the recipient of any information disclosed as the result of the operation of this Schedule to appear before it from time to time to give evidence.
20
Reports about the operation of this Schedule
20 Reports about the operation of this Schedule
20 Reports about the operation of this Schedule
(1) The Commissioner or head (however described) of a police force or police service of a *participating State or *self-governing Territory must give the Minister a written report in respect of each financial year that contains the following information—
(a) the number and results of applications for *production orders under clause 1 in the year by an *authorised State/Territory officer of the State or Territory;
(b) the number of notices to *financial institutions issued under clause 12 in the year by an official specified in subclause 12(3) of the State or Territory;
(c) any other information of a kind prescribed by the regulations.
(2) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after its receipt by the Minister.
Schedule 3
Text for amendments concerning State reference or adoption for the purposes of the national cooperative scheme on unexplained wealth
Schedule 3 Text for amendments concerning State reference or adoption for the purposes of the national cooperative scheme on unexplained wealth
Schedule 3 Text for amendments concerning State reference or adoption for the purposes of the national cooperative scheme on unexplained wealth
14A
Concurrent operation of State and Territory laws
14A Concurrent operation of State and Territory laws
14A Concurrent operation of State and Territory laws
(1) This Act does not exclude or limit the operation of a law of a State or Territory to the extent that the law is capable of operating concurrently with this Act.
(2) Subsection (1) does not apply to the *national unexplained wealth provisions.
Note: For the interaction between the national unexplained wealth provisions and a law of a State or Territory, see section 14L.
sch.3-sec.2-frag-div
Division 2—The national unexplained wealth provisions
sch.3-sec.2-frag-div Division 2—The national unexplained wealth provisions
Division 2—The national unexplained wealth provisions
sch.3-sec.2-frag-div-sdiv
Subdivision A—General
sch.3-sec.2-frag-div-sdiv Subdivision A—General
Subdivision A—General
14B
Constitutional basis of the national unexplained wealth provisions
14B Constitutional basis of the national unexplained wealth provisions
14B Constitutional basis of the national unexplained wealth provisions
(1) What this section is about This section sets out the constitutional basis of the *national unexplained wealth provisions.
(2) National unexplained wealth provisions The national unexplained wealth provisions are—
(a) the *main unexplained wealth provisions; and
(b) the *participating jurisdiction information gathering provisions; and
(c) the *unexplained wealth machinery and transitional provisions.
(3) Main unexplained wealth provisions The main unexplained wealth provisions are—
(a) section 20A and Part 2-6; and
(b) the other provisions of this Act in so far as they relate to that section or that Part; and
(c) instruments made under this Act for the purposes of a provision referred to in paragraph (a) or (b).
(4) Participating jurisdiction information gathering provisions The participating jurisdiction information gathering provisions are—
(a) section 14M and Schedule 1; and
(b) the other provisions of this Act in so far as they relate to that section or that Schedule; and
(c) instruments made under this Act for the purposes of a provision referred to in paragraph (a) or (b).
(5) Unexplained wealth machinery and transitional provisions The unexplained wealth machinery and transitional provisions are—
(a) the following provisions (the main machinery and transitional provisions)—
(i) sections 14A to 14L and 14N;
(ii) the definitions of adoption Act, amendment reference, cooperating State, express amendment, information gathering, main machinery and transitional provisions, main unexplained wealth provisions, national unexplained wealth provisions, non-participating State, participating jurisdiction information gathering provisions, participating State, post-amended version 1 of this Act, post-amended version 2 of this Act, pre-amended version of this Act, referral Act, relevant law 1, relevant law 2, special confiscation law, text reference 1, text reference 2, unexplained wealth and unexplained wealth machinery and transitional provisions in section 338;
(iii) Schedule 2; and
(b) the other provisions of this Act in so far as they relate to any of the main machinery and transitional provisions; and
(c) instruments made under this Act for the purposes of a provision referred to in paragraph (a) or (b).
(6) Application in participating States The application of the *national unexplained wealth provisions in a *participating State is based on—
(a) the legislative powers that the Commonwealth Parliament has because of a reference or an adoption by the Parliaments of the participating States under paragraph 51(xxxvii) of the Constitution; and
(b) the other legislative powers that the Commonwealth Parliament has under the Constitution.
(7) Application in non-participating States The application of the *national unexplained wealth provisions (other than the *unexplained wealth machinery and transitional provisions) in a *non-participating State is based on—
(a) the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and
(b) the other legislative powers that the Commonwealth Parliament has under the Constitution.
(8) The application of the *unexplained wealth machinery and transitional provisions in a *non-participating State that—
(a) was a *participating State because it had referred to the Commonwealth Parliament—
(i) *text reference 1; and
(ii) *text reference 2; and
(iii) the *amendment reference; and
(b) ceased to be a participating State because it terminated either or both of the following—
(i) the referral of text reference 1;
(ii) the referral of the amendment reference; and
(c) has not terminated the referral of text reference 2;
is based on—
(d) the legislative powers that the Commonwealth Parliament has because of the referral of text reference 2 under paragraph 51(xxxvii) of the Constitution; and
(e) the other legislative powers that the Commonwealth Parliament has under the Constitution.
(9) The application of the *unexplained wealth machinery and transitional provisions in a *non-participating State that—
(a) was a *participating State because it had—
(i) adopted *post-amended version 1 of this Act; and
(ii) adopted *post-amended version 2 of this Act; and
(iii) referred to the Commonwealth Parliament the *amendment reference; and
(b) ceased to be a participating State because it terminated either or both of the following—
(i) the adoption of post-amended version 1 of this Act;
(ii) the referral of the amendment reference; and
(c) has not terminated the adoption of post-amended version 2 of this Act;
is based on—
(d) the legislative powers that the Commonwealth Parliament has because of the adoption of post-amended version 2 of this Act under paragraph 51(xxxvii) of the Constitution; and
(e) the other legislative powers that the Commonwealth Parliament has under the Constitution.
(10) The application of the *unexplained wealth machinery and transitional provisions in a *non-participating State not covered by subsection (8) or (9) is based on—
(a) the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxxvii)) and section 122 of the Constitution; and
(b) the other legislative powers that the Commonwealth Parliament has under the Constitution.
(11) Application in a self-governing Territory The application of the *national unexplained wealth provisions in a *self-governing Territory is based on—
(a) the legislative powers that the Commonwealth Parliament has under section 122 of the Constitution to make laws for the government of a Territory; and
(b) the other legislative powers that the Commonwealth Parliament has under the Constitution.
Despite section 2H of the Acts Interpretation Act 1901, the national unexplained wealth provisions as applying in a self-governing Territory are laws of the Commonwealth.
(12) Application outside Australia The application of the *national unexplained wealth provisions outside *Australia is based on—
(a) the legislative powers that the Commonwealth Parliament has under paragraph 51(xxix) of the Constitution; and
(b) the legislative powers that the Commonwealth Parliament has under section 51 (other than paragraph 51(xxix)) and section 122 of the Constitution; and
(c) the other legislative powers that the Commonwealth Parliament has under the Constitution.
14C
What is a participating State?
14C What is a participating State?
14C What is a participating State?
(1) Participating State A State is a participating State if, for the purposes of paragraph 51(xxxvii) of the Constitution, the Parliament of the State—
(a) has, by its *referral Act, referred to the Commonwealth Parliament—
(i) *text reference 1 (see subsection (2)); and
(ii) *text reference 2 (see subsection (3)); and
(iii) the *amendment reference (see subsection (4));
(2) Text reference 1 Text reference 1 of a State means the matters to which the *pre-amended version of this Act would relate if *express amendments were made to it in the terms, or substantially in the terms, of *relevant law 1, but excluding matters to which the pre-amended version of this Act otherwise relates.
(3) Text reference 2 Text reference 2 of a State means the matters to which the *pre-amended version of this Act would relate if *express amendments were made to it in the terms, or substantially in the terms, of *relevant law 2, but excluding matters to which the pre-amended version of this Act otherwise relates.
(4) Amendment reference The amendment reference of a State means the matters relating to—
(a) *unexplained wealth (see section 14D); and
(b) *information gathering (see section 14E);
to the extent of making laws with respect to those matters by making *express amendments of this Act.
(5) Post-amended version 1 of this Act Post-amended version 1 of this Act, in relation to the *adoption Act of a State, means this Act as amended by—
(a) *relevant law 1; and
(b) any other *express amendments of this Act that—
(i) were enacted at any time after the enactment of relevant law 1 but before the enactment of the adoption Act; and
(ii) were not amendments of the *main machinery and transitional provisions (see subsection 14B(5));
to the extent that this Act as so amended is a law with respect to *text reference 1 or the *amendment reference referred to the Commonwealth Parliament by the Parliament of another State for the purposes of paragraph 51(xxxvii) of the Constitution.
(6) Post-amended version 2 of this Act Post-amended version 2 of this Act, in relation to the *adoption Act of a State, means this Act as amended by—
(a) *relevant law 2; and
(b) any other *express amendments of this Act that—
(i) were enacted at any time after the enactment of relevant law 2 but before the enactment of the adoption Act; and
(ii) were amendments of the *main machinery and transitional provisions (see subsection 14B(5));
to the extent that this Act as so amended is a law with respect to *text reference 2 or the *amendment reference referred to the Commonwealth Parliament by the Parliament of another State for the purposes of paragraph 51(xxxvii) of the Constitution.
(7) Certain things do not affect a participating State’s status A State is a participating State even if the State’s referral Act or adoption Act provides that—
(a) the reference to the Commonwealth Parliament of *text reference 1, *text reference 2 or the *amendment reference is to terminate in particular circumstances; or
(b) the adoption of *post-amended version 1 of this Act or *post-amended version 2 of this Act is to terminate in particular circumstances; or
(c) the reference to the Commonwealth Parliament of the amendment reference does not include the matter of including a provision in section 20A or Part 2-6 that—
(i) requires a person pay an amount otherwise than by order of a court; or
(ii) requires or permits property (within the meaning of subsection 14D(2)) to be restrained, forfeited or seized otherwise than by order of a court; or
(d) the reference to the Commonwealth Parliament of text reference 1, text reference 2 or the amendment reference has effect only—
(i) if and to the extent that the matter is not included in the legislative powers of the Commonwealth Parliament (otherwise than by a reference under paragraph 51(xxxvii) of the Constitution); or
(ii) if and to the extent that the matter is included in the legislative powers of the Parliament of the State.
(8) When a State ceases to be a participating State A State ceases to be a participating State if—
(a) in the case where the Parliament of the State has referred to the Commonwealth Parliament *text reference 1 and *text reference 2—either or both of those references terminate; or
(b) in the case where the Parliament of the State has adopted the *post-amended version 1 of this Act and *post-amended version 2 of this Act—either or both of those adoptions terminate.
(9) A State ceases to be a participating State if—
(a) the State’s referral of the *amendment reference terminates; and
(b) subsection (10) does not apply to the termination.
(10) A State does not cease to be a participating State because of the termination of its referral of the *amendment reference if—
(a) the termination is effected by the Governor of that State fixing a day by proclamation as the day on which the reference terminates; and
(b) the day fixed is no earlier than the first day after the end of the period of 6 months beginning on the day on which the proclamation is published; and
(c) that State’s amendment reference, and the amendment reference of every other State, terminates on the same day.
(11) Other definitions In this Act—
adoption Act, of a State, means the Act of the State that—
(a) adopts *post-amended version 1 of this Act; and
(b) adopts *post-amended version 2 of this Act; and
(c) refers the *amendment reference to the Commonwealth Parliament.
express amendment of this Act means the direct amendment of the text of this Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act or by an instrument under a Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of this Act.
pre-amended version of this Act, in relation to the *referral Act of a State, means this Act as originally enacted and as subsequently amended by amendments enacted at any time before the enactment of the referral Act of the State.
referral Act, of a State, means the Act of the State that refers *text reference 1, *text reference 2 and the *amendment reference to the Commonwealth Parliament.
(1) For the purposes of the *amendment reference of a State (see subsection 14C(4)), unexplained wealth means property or wealth that might not have been lawfully acquired.
(2) The meaning of lawfully acquired, property and wealth in subsection (1) includes, but is not limited to, the meaning of those terms in this Act as in force immediately before the enactment of the first *referral Act of a State.
14E
Meaning of information gathering
14E Meaning of information gathering
14E Meaning of information gathering
For the purposes of the *amendment reference of a State (see subsection 14C(4)), information gathering means the production or provision of information for the purposes of, or relevant to, the taking of action, or the institution of proceedings, under a law of the State.
14F
When a non-participating State is a cooperating State
14F When a non-participating State is a cooperating State
14F When a non-participating State is a cooperating State
(1) States that have referred text references 1 and 2 A *non-participating State is a cooperating State if—
(a) an *express amendment of section 14G or 14J (about rollback), or Division 2 of Part 4-3 (about sharing proceeds), was enacted; and
(b) before the amendment was enacted, the State was a *participating State; and
(c) after the amendment was enacted, the State ceased to be a participating State because it terminated either or both of the following—
(i) the referral of *text reference 1;
(ii) the referral of the *amendment reference; and
(d) the termination was effected by a proclamation that was made under the State’s *referral Act for the purpose of this section; and
(e) the State has not terminated its referral of *text reference 2.
Note: Under Division 2 of Part 4-3 (which is about sharing proceeds of confiscated assets under the national cooperative scheme), a non-participating State that is a cooperating State is treated in the same way as a participating State.
(2) States that have adopted the post-amended versions of this Act A *non-participating State is also a cooperating State if—
(a) an *express amendment of section 14G or 14J (about rollback), or Division 2 of Part 4-3 (about sharing proceeds), was enacted; and
(b) before the amendment was enacted, the State was a *participating State; and
(c) after the amendment was enacted, the State ceased to be a participating State because it terminated either or both of the following—
(i) the adoption of *post-amended version 1 of this Act;
(ii) the referral of the *amendment reference; and
(d) the termination was effected by a proclamation that was made under the State’s *adoption Act for the purpose of this section; and
(e) the State has not terminated its adoption of *post-amended version 2 of this Act.
(3) Despite subsections (1) and (2), a *non-participating State ceases to be, or is not, a cooperating State if a declaration under subsection (4) is in force in relation to the State.
(4) The Minister may, by legislative instrument, declare that a State is not a *cooperating State.
(5) A declaration made under subsection (4) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the declaration.
sch.3-sec.2-frag-div-sdiv-oc.2
Subdivision B—Rollback of particular express amendments
sch.3-sec.2-frag-div-sdiv-oc.2 Subdivision B—Rollback of particular express amendments
Subdivision B—Rollback of particular express amendments
14G
Effect of rollback by participating States on unexplained wealth proceedings
14G Effect of rollback by participating States on unexplained wealth proceedings
14G Effect of rollback by participating States on unexplained wealth proceedings
(1) When this section applies This section applies if—
(a) a proclamation is made under the *referral Act or *adoption Act of a *participating State for the purposes of this section; and
(b) the proclamation declares that an *express amendment of this Act (other than this Subdivision) is not to apply to proceedings covered by subsection (3), (4) or (5); and
(c) the proclamation comes into force in the period of 6 months beginning on the day the amendment is enacted.
(2) Application of this Act to proceedings This Act applies to the proceedings as if the amendment had not been enacted.
(3) Proceedings for restraining orders Proceedings are covered by this subsection if—
(a) the proceedings are instituted while the proclamation is in force; and
(b) the proceedings are for the making of a *restraining order under section 20A in relation to a *suspect; and
(c) the affidavit supporting the application for the order states that an *authorised officer suspects either or both of the following—
(i) that the suspect has committed a *relevant offence of a *participating State;
(ii) that the whole or any part of the suspect’s *wealth was derived from a relevant offence of a participating State.
(4) Proceedings for unexplained wealth orders Proceedings are covered by this subsection if—
(a) the proceedings are instituted while the proclamation is in force; and
(b) the proceedings are for the making of an *unexplained wealth order (including a *preliminary unexplained wealth order) in relation to a *suspect; and
(c) the application for the order states that an *authorised officer suspects that the whole or any part of the suspect’s *wealth was derived from a *relevant offence of a *participating State.
(5) Proceedings for other orders Proceedings are covered by this subsection if—
(a) the proceedings are instituted while the proclamation is in force; and
(b) the proceedings are for the making of an order that relates to—
(i) a *restraining order made in proceedings covered by subsection (3); or
(ii) an *unexplained wealth order (including a *preliminary unexplained wealth order) made in proceedings covered by subsection (4).
14H
Effect of rollback by self-governing Territories on unexplained wealth proceedings
14H Effect of rollback by self-governing Territories on unexplained wealth proceedings
14H Effect of rollback by self-governing Territories on unexplained wealth proceedings
(1) When this section applies This section applies if—
(a) a law (the disapplying law) of a *self-governing Territory is made for the purposes of this section; and
(b) the law declares that an *express amendment of this Act (other than this Subdivision) is not to apply to proceedings covered by subsection (3), (4) or (5); and
(c) the disapplying law comes into force in the period of 6 months beginning on the day the amendment is enacted.
(2) Application of this Act to proceedings This Act applies to the proceedings as if the amendment had not been enacted.
(3) Proceedings for restraining orders Proceedings are covered by this subsection if—
(a) the proceedings are instituted while the disapplying law is in force; and
(b) the proceedings are for the making of a *restraining order under section 20A in relation to a *suspect; and
(c) the affidavit supporting the application for the order states that an *authorised officer suspects either or both of the following—
(i) that the suspect has committed a *Territory offence;
(ii) that the whole or any part of the suspect’s *wealth was derived from a Territory offence.
(4) Proceedings for unexplained wealth orders Proceedings are covered by this subsection if—
(a) the proceedings are instituted while the disapplying law is in force; and
(b) the proceedings are for the making of an *unexplained wealth order (including a *preliminary unexplained wealth order) in relation to a *suspect; and
(c) the application for the order states that an *authorised officer suspects that the whole or any part of the suspect’s *wealth was derived from a *Territory offence.
(5) Proceedings for other orders Proceedings are covered by this subsection if—
(a) the proceedings are instituted while the disapplying law is in force; and
(b) the proceedings are for the making of an order that relates to—
(i) a *restraining order that has been made in proceedings covered by subsection (3); or
(ii) an *unexplained wealth order (including a *preliminary unexplained wealth order) that has been made in proceedings covered by subsection (4).
14J
Effect of rollback by participating States on action taken under State reference information gathering provisions
14J Effect of rollback by participating States on action taken under State reference information gathering provisions
14J Effect of rollback by participating States on action taken under State reference information gathering provisions
(1) When this section applies This section applies if—
(a) a proclamation is made under the *referral Act or *adoption Act of a *participating State for the purposes of this section; and
(b) the proclamation declares that an *express amendment of this Act (other than this Subdivision) is not to apply to—
(i) an application covered by subsection (3); or
(ii) an order made as a result of an application covered by subsection (3); or
(iii) a notice covered by subsection (4); and
(c) the proclamation comes into force in the period of 6 months beginning on the day the amendment is enacted.
(2) Application of this Act to the application, order or notice This Act applies to the application, order or notice as if the amendment had not been enacted.
(3) Applications for production orders This subsection covers an application if—
(a) the application is made while the proclamation is in force; and
(b) the application is for the making of a *production order under clause 1 of Schedule 1; and
(c) the application is made by an *authorised State/Territory officer of the State.
(4) Notices to financial institutions This subsection covers a notice if—
(a) the notice is given while the proclamation is in force; and
(b) the notice is given to a *financial institution under clause 12 of Schedule 1; and
(c) the notice is given by an official of the State specified in subclause 12(3) of Schedule 1.
14K
Effect of rollback by self-governing Territories on action taken under State reference information gathering provisions
14K Effect of rollback by self-governing Territories on action taken under State reference information gathering provisions
14K Effect of rollback by self-governing Territories on action taken under State reference information gathering provisions
(1) When this section applies This section applies if—
(a) a law (the disapplying law) of a *self-governing Territory is made for the purposes of this section; and
(b) the disapplying law declares that an *express amendment of this Act (other than this Subdivision) is not to apply to—
(i) an application covered by subsection (3); or
(ii) an order made as a result of an application covered by subsection (3); or
(iii) a notice covered by subsection (4); and
(c) the disapplying law comes into force in the period of 6 months beginning on the day the amendment is enacted.
(2) Application of this Act to the application, order or notice This Act applies to the application, order or notice as if the amendment had not been enacted.
(3) Applications for production orders This subsection covers an application if—
(a) the application is made while the disapplying law is in force; and
(b) the application is for the making of a *production order under clause 1 of Schedule 1; and
(c) the application is made by an *authorised State/Territory officer of the Territory.
(4) Notices to financial institutions This subsection covers a notice if—
(a) the notice is given while the disapplying law is in force; and
(b) the notice is given to a *financial institution under clause 12 of Schedule 1; and
(c) the notice is given by an official of the Territory specified in subclause 12(3) of Schedule 1.
sch.3-sec.2-frag-div-sdiv-oc.3
Subdivision C—Interaction of the national unexplained wealth provisions and orders with State and Territory laws and orders
sch.3-sec.2-frag-div-sdiv-oc.3 Subdivision C—Interaction of the national unexplained wealth provisions and orders with State and Territory laws and orders
Subdivision C—Interaction of the national unexplained wealth provisions and orders with State and Territory laws and orders
14L
Concurrent operation of State and Territory laws with national unexplained wealth provisions
14L Concurrent operation of State and Territory laws with national unexplained wealth provisions
14L Concurrent operation of State and Territory laws with national unexplained wealth provisions
(1) Concurrent operation of laws The *national unexplained wealth provisions do not exclude or limit the operation of a law of a State or Territory (including a *special confiscation law) to the extent that the law is capable of operating concurrently with those provisions.
(2) A *corresponding law of a State or Territory is a special confiscation law while the State is a *participating State or the Territory is a *self-governing Territory.
(3) Without limiting subsection (1), the *national unexplained wealth provisions do not exclude or limit the concurrent operation of a *special confiscation law merely because—
(a) that law, or an order made under that law—
(i) prevents or restricts a person from disposing of, or dealing with, property (for example, by way of a restraining order made under that law); or
(ii) confiscates or forfeits property of a person (for example, by way of a forfeiture order made under that law); or
(iii) requires the person to pay an amount (for example, by way of an unexplained wealth order made under that law); or
(iv) deals with a matter prescribed by the regulations; and
(b) the national unexplained wealth provisions, or an order made under those provisions, also—
(i) prevent or restrict the person from disposing of, or dealing with, the property (for example, by way of a restraining order under section 20A); or
(ii) require the person to pay an amount (for example, by way of an *unexplained wealth order); or
(iii) deal with a matter prescribed by the regulations.
(4) Subsection (3) applies even if the *special confiscation law, or order made under that law, does any one or more of the following—
(a) prevents or restricts a person from disposing of, or dealing with, property in circumstances in which a *restraining order under section 20A could not be obtained to prevent or restrict such disposal or dealing;
(b) prevents or restricts, in particular circumstances, disposal of, or dealing with, more or less property than could be covered by a restraining order under section 20A in those circumstances;
(c) prevents or restricts disposal of, or dealing with, property that is or could be excluded from a restraining order under section 20A;
(d) confiscates or forfeits, in particular circumstances, property of a greater or lesser value than the *unexplained wealth amount of a person under an *unexplained wealth order that is or could be made in those circumstances;
(e) requires payment of an amount that is greater or lesser than the amount that is or could be payable under an unexplained wealth order;
(f) deals with a matter prescribed by the regulations.
(5) This section does not affect section 14A This section does not by implication affect section 14A (which deals with the concurrent operation of this Act, except the *national unexplained wealth provisions, and laws of States and Territories).
(6) Application of this section This section applies in relation to the operation of the *national unexplained wealth provisions and a law of a *participating State or *self-governing Territory in the period referred to in subsection (7), including in relation to—
(a) orders that are made under a *special confiscation law in that period in relation to proceedings that are instituted under the special confiscation law before or in that period; and
(b) orders that are made under a special confiscation law before that period and that are in force at any time in that period; and
(c) orders that are made under the national unexplained wealth provisions in that period in relation to proceedings that are instituted under the national unexplained wealth provisions before or in that period.
(7) For the purposes of subsection (6), the period is as follows—
(a) for a *participating State that has a *referral Act—the period starts at the commencement of this section and ends only if the State ceases to be a participating State, in which case, the period ends at the time the State so ceases;
(b) for a participating State that has an *adoption Act—the period starts at the commencement of the State’s adoption Act and ends only if the State ceases to be a participating State, in which case, the period ends at the time the State so ceases;
(c) for a *self-governing Territory—the period starts at the commencement of this section and does not end.
14N
Transitional, application and saving provisions relating to the national cooperative scheme on unexplained wealth
14N Transitional, application and saving provisions relating to the national cooperative scheme on unexplained wealth
14N Transitional, application and saving provisions relating to the national cooperative scheme on unexplained wealth
Schedule 2 has effect.
sch.3-sec.6-frag-sch-pt
Part 1—General
sch.3-sec.6-frag-sch-pt Part 1—General
Part 1—General
sch.3-sec.6-frag-sch-pt-div
Division 1—Termination of State reference or adoption
sch.3-sec.6-frag-sch-pt-div Division 1—Termination of State reference or adoption
Division 1—Termination of State reference or adoption
sch.3-sec.6-frag-sch-pt-div-oc.2
Division 2—Ceasing to be a relevant offence of a State
sch.3-sec.6-frag-sch-pt-div-oc.2 Division 2—Ceasing to be a relevant offence of a State
Division 2—Ceasing to be a relevant offence of a State
sch.3-sec.6-frag-sch-pt-oc.2
Part 2—Unexplained Wealth Legislation Amendment Act 2018
sch.3-sec.6-frag-sch-pt-oc.2 Part 2—Unexplained Wealth Legislation Amendment Act 2018
(1) This Act is the Unexplained Wealth (Commonwealth Powers) Act 2018.
(2) The main purpose of this Act is to refer certain matters relating to unexplained wealth and information gathering to the Parliament of the Commonwealth for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth.
2 Commencement
2 Commencement
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
3 Definitions
3 Definitions
(1) In this Act—
amendment reference means the reference to the Parliament of the Commonwealth of the matters covered by section 4 (1) (c).
assent date means the date of assent to this Act.
commencement day means the day on which section 4 (1) comes into operation.
Commonwealth Proceeds of Crime Act means the Proceeds of Crime Act 2002 of the Commonwealth, as in force from time to time.
express amendment of the Commonwealth Proceeds of Crime Act means the direct amendment of the text of that Act (whether by the insertion, omission, repeal, substitution or relocation of words or matter) by another Commonwealth Act or by an instrument under a Commonwealth Act, but does not include the enactment by a Commonwealth Act of a provision that has, or will have, substantive effect otherwise than as part of the text of the Commonwealth Proceeds of Crime Act.
pre-assent version of the Commonwealth Proceeds of Crime Act means the Proceeds of Crime Act 2002 of the Commonwealth, as originally enacted and as subsequently amended by amendments enacted at any time before the assent date.
prescribed termination day means the day on which text reference 1 and the amendment reference are to terminate as set out in section 9 (1).
reference means—
(a) text reference 1, or
(b) text reference 2, or
(c) the amendment reference.
relevant offence means an offence of a kind specified in section 8.
The official rationale recorded in s 1(2) is a constitutional referral to enable Commonwealth lawmaking on unexplained wealth and information gathering. The Act then supplies the detailed text and operational parameters it expects the Commonwealth CPoC Act to adopt for a national cooperative scheme (Schedules 1-3, and the inserted Subdivision D of Division 2 of Part 1‑4).
Main concepts
The Act builds around a small set of legal concepts and mechanisms that determine scope, powers, limits and interaction with State laws.
Referral and express amendment: The core device is a referral of matters to the Commonwealth so the CPoC Act can be expressly amended (s 4(1)(a)-(c)). The term express amendment is defined in s 3(1): a direct amendment of the text of the CPoC Act rather than merely making a law with equivalent substantive effect elsewhere.
Unexplained wealth: Defined for the purposes of the referral as “property or wealth that might not have been lawfully acquired” (s 5(1)). The definition expressly incorporates the meanings used in the pre‑assent (pre‑amendment) version of the CPoC Act (s 5(2)). Schedule 3 repeats this for State amendment references (s 14D).
Information gathering: For the referral, “information gathering” means production or provision of information for purposes of, or relevant to, taking action or instituting proceedings under a State law (s 6; reflected in s 14E for State referrals). The national scheme adds specific information‑gathering powers: production orders (Schedule 2 cl 1-11) and notices to financial institutions (Schedule 2 cl 12-17).
Production orders: A magistrate may require a person to produce or make available documents to an authorised State/Territory officer (Schedule 2 cl 1). The order can only target documents that are in the possession/control of a body corporate or used or intended to be used in the carrying on of business; accounting records of financial institutions (ledgers, day books, cash books, account books) are excluded (cl 1(3)(b)-(c)). The magistrate must be satisfied on oath of a reasonable suspicion that the person has possession or control (cl 1(3)(a)).
Notices to financial institutions: Officials in participating jurisdictions may serve written notices requiring an institution to provide account holder identity, signatories, balances, transaction details (up to 6 months), related accounts and stored value card information, subject to a reasonable belief test (cl 12(1)-(3); cl 13). The notice must observe form and timeframe rules (cl 13).
Disclosure, confidentiality and admissibility: The Schedule allows sharing of information obtained under the national scheme with specified authorities for particular purposes (Schedule 2 cl 18). It limits admissibility of documents produced under a production order in a criminal proceeding against the person who produced them, except where false or misleading document offences are charged (cl 18(3)-(4)).
Concurrent operation and interaction with State laws: The Act anticipates and preserves concurrent operation with State special confiscation laws (Schedule 3, ss 14A, 14L). Subsection 14A excludes the national unexplained wealth provisions from the general saving in s 14A(1) but Schedule 3 then details how national and State schemes operate concurrently (14L), including sharing proceeds rules.
Participating and cooperating States: The Act establishes how a State becomes a participating State,by referral Act or adoption Act,and how that status may end or be preserved (s 14C). Non‑participating States can be treated as cooperating States in certain circumstances (s 14F).
Temporal mechanics: The referral has a default six year sunset for text reference 1 and the amendment reference, subject to Governor proclamation to extend or bring forward termination (s 9; ss 11-13). Rollback mechanisms allow states/territories to disapply certain express amendments for particular proceedings when a proclamation or disapplying law is made within a narrow window (see s 7; Schedule 3 ss 14G-14K).
These concepts determine who can seek information, what can be sought, the procedural gateway (magistrate), safeguards around privilege and admissibility, and how the national scheme coexists with State confiscation regimes.
Who it affects
The Act and the national cooperative schedule affect defined groups with differing burdens and decision rights.
Commonwealth and State parliaments and executives: The State is referring matters to the Commonwealth Parliament (s 4(1)(a)-(c)). The Commonwealth will be empowered to amend the CPoC Act; the Act also contemplates further Commonwealth action under its own constitutional powers (s 4(5)). The Governor of the State has administrative powers to fix commencement, termination, extensions and rollback proclamations (ss 2, 9-13, 7).
Participating States and self‑governing Territories: The scheme is explicitly designed for participation by States that refer or adopt the relevant text and by self‑governing Territories (Schedule 3, ss 14B-14C). Participating States will have authorised officers who can apply for production orders and give notices under the national scheme (Schedule 2 cl 1(2), cl 12(3)).
Law enforcement, prosecutors and specified officials: Officials who may give notices include the Commissioner or head of police, the Director of Public Prosecutions or equivalent, and where New South Wales is participating, the Commissioner and Assistant Commissioners of the NSW Crimes Commission (Schedule 2 cl 12(3)). Authorised State/Territory officers include persons who may apply for restraining orders under a special confiscation law (cl 1(2)(a)). Commonwealth authorities also appear as permitted recipients of disclosed information (cl 18(2), items in the table).
Magistrates and courts: Magistrates decide applications for production orders and must be satisfied on oath of reasonable suspicion (cl 1(3)(a)). The Act also provides that magistrates may issue orders relating to documents located interstate or in non‑governing Territories in special circumstances (cl 7).
Businesses and body corporates: Production orders target documents that are in possession of bodies corporate or used in carrying on business (cl 1(3)(b)). Businesses will need document retention and disclosure procedures. Financial institutions are subject to notices requiring account and transactional information (cl 12), with scope defined (cl 12(1)(a)-(h)) and time limits (cl 13(1)(e)).
Natural persons and suspects: Persons who are the subject of production orders or whose wealth is investigated will face an altered privilege landscape: the privilege against self‑incrimination, secrecy obligations and legal professional privilege do not excuse production (cl 5(1)(a)-(c)), although documents produced by a natural person are not admissible in criminal proceedings against them except for false document offences (cl 5(2); cl 18(3)).
Financial institutions, their officers and agents: A financial institution that complies with a notice receives statutory protection from civil action in relation to compliance and is taken not to have been in possession of that information for money‑laundering provisions (cl 14(1)-(2)). That creates a statutory safe harbour for reporting and compliance, but it also places operational burdens to respond within specified timeframes.
Parliament and oversight bodies: The Parliamentary Joint Committee on Law Enforcement has oversight of the Schedule’s operation (Schedule 2 cl 19(1)). Participating State police heads must report annually to the Minister with specified data and the Minister must table those reports in each House within 15 sitting days (cl 20(1)-(2)).
In short, the measures concentrate decision rights in magistrates and specified law enforcement/prosecution officials while shifting documentary compliance costs onto businesses and financial institutions. The consequences for natural persons are a reduced scope for using privilege as a shield to withhold documents from production orders, with limited admissibility protection.
Key duties and rights
The Act establishes procedural duties, compliance obligations and limited rights across the national scheme material inserted into the CPoC Act.
Duties and decision points
Duty on magistrates: A magistrate may make a production order only if satisfied on oath that a person is reasonably suspected of having possession or control of the documents (Schedule 2 cl 1(3)(a)). The order must contain specified content: nature of documents, place, time(s), form of production, name of authorised officer, nondisclosure effect if any and notice of penalty for noncompliance (cl 2(1)(a)-(g)).
Duty on authorised State/Territory officers and officials: Authorised officers (those able to apply for restraining orders or as specified for NSW and Territories) may apply for production orders and give notices to financial institutions (cl 1(4); cl 12(3)). The official must reasonably believe the notice is required to determine whether to take action under unexplained wealth legislation or for proceedings (cl 12(2)) and must have regard to the institution’s record‑keeping capabilities when specifying form and manner (cl 13(1)(d)).
Duty on persons and corporations given a production order: A person must comply with a production order unless they are notified of sufficient compliance by the authorised officer (cl 10(1)-(2)). There are defences where the person took all reasonable steps to comply and produces the document as soon as practicable (cl 10(3)). A person may apply to vary an order to make documents available for inspection if the document is essential to their business activities (cl 6(1)-(2)).
Duty on financial institutions: Upon receipt of a notice under cl 12, a financial institution must provide the specified information or documents by the time prescribed (cl 13(1)(e)). There is a statutory protection from suits for institutions and their officers when they act under a notice or do so in the mistaken belief action was required (cl 14(1)). The institution is also treated as not having been in possession of that information for Part 10.2 Criminal Code money‑laundering offences (cl 14(2)).
Rights, limitations and safeguards
No privilege as an excuse to refuse production: Privilege against self‑incrimination, contractual or statutory obligations of secrecy and legal professional privilege do not excuse production under a production order (cl 5(1)(a)-(c)). That duty is limited by admissibility constraints: for natural persons, documents produced are inadmissible in criminal proceedings against them except prosecutions for making false or misleading statements or documents (cl 5(2); cl 18(3)-(4)).
Time and hardship considerations: Production orders and notices must ordinarily allow at least 14 days for compliance; the magistrate or official may specify an earlier time of at least 3 days if appropriate considering urgency and hardship (cl 2(2), cl 2(3), cl 13(1)(e)-(2)). This provides a statutory balancing factor for operational burden.
Confidentiality restrictions and offences: A production order or notice may specify that information about it must not be disclosed. Disclosure in breach attracts criminal penalties,disclosing existence or nature of a production order is punishable by up to 2 years imprisonment or 120 penalty units (cl 9(1)-(2)); similar penalties apply to disclosure of notices (cl 16). There are limited exceptions such as disclosure to agents for obtaining required documents, legal advice or in the course of legal proceedings (cl 9(3)).
Protections for providers: A person whose documents are retained may require the authorised officer to certify a true copy or allow inspection and extracts (cl 4(2)). Financial institutions complying with notices receive statutory immunity from civil suits and a protective treatment for money‑laundering possession (cl 14(1)-(2)).
Criminal penalties and defences: False statements in applications or notices attract imprisonment up to 12 months or 60 penalty units (cl 8; cl 15). Failure to comply with production orders or notices is an offence carrying up to 6 months imprisonment or 30 penalty units, with a statutory defence where reasonable steps were taken and the information or document is provided as soon as practicable (cl 10; cl 17). Destroying or interfering with a document subject to a production order is an offence (cl 11).
Oversight and reporting rights: The Parliamentary Joint Committee on Law Enforcement has oversight of the Schedule’s operation and can require participating state authorities to appear (cl 19). Participating State police heads must report annually to the Minister with specified statistics and the Minister must table the report (cl 20).
Taken together, duties impose document disclosure and cooperation obligations on businesses, financial institutions and natural persons subject to production orders and notices. Rights are primarily procedural: judicial authorisation via magistrates, short compliance windows, limited admissibility protection and statutory immunities for institutions.
Penalties and enforcement
The Act (through the Scheduleed provisions intended for inclusion in the CPoC Act) creates a mix of criminal offences for false statements, disclosure breaches, non‑compliance and document interference, plus administrative enforcement levers.
Penalties listed in the Schedule
False statements in applications for production orders: It is an offence to make a false or misleading statement, or omit a matter making a statement misleading, in an application for a production order. Penalty: imprisonment for 12 months or 60 penalty units, or both (Schedule 2 cl 8).
Disclosure of existence or nature of a production order: Where a production order specifies nondisclosure and the recipient discloses the existence or nature of the order, the offence attracts imprisonment for 2 years or 120 penalty units, or both. An offence also exists if a recipient discloses information from which another person could infer the existence or nature of the order, with the same penalty (cl 9(1)-(2)).
Failing to comply with a production order: Noncompliance without being notified of sufficient compliance is an offence. Penalty: imprisonment for 6 months or 30 penalty units, or both (cl 10(1)). There is an evidential defence if reasonable steps were taken and the document is produced as soon as practicable (cl 10(3)). The note references Criminal Code ss 137.1 and 137.2 (false or misleading information) as additional offences.
Destroying, defacing or interfering with documents subject to production orders: Penalty: imprisonment for 6 months or 30 penalty units, or both (cl 11).
False statements in notices to financial institutions: A person who makes a false or misleading statement in, or in connection with, a notice under cl 12 commits an offence. Penalty: imprisonment for 12 months or 60 penalty units, or both (cl 15).
Disclosure of existence or nature of notices: A person who discloses the existence or nature of a notice (when the notice specifies nondisclosure) commits an offence. Penalty: imprisonment for 2 years or 120 penalty units, or both (cl 16).
Failing to comply with notices to financial institutions: Noncompliance constitutes an offence. Penalty: imprisonment for 6 months or 30 penalty units, or both. There is a defence where reasonable steps to comply were taken and the information/documents are provided as soon as practicable (cl 17).
Enforcement mechanics
Judicial gatekeeping: A magistrate must authorise production orders. The magistrate’s oath requirement (reasonable suspicion) is the judicial gatekeeping mechanism (cl 1(3)(a)). Production orders can be made without notice to the person (cl 1(5)).
Investigative powers: Authorised State/Territory officers may inspect, take extracts or copy documents produced under production orders (cl 3). They may retain documents for as long as necessary for unexplained wealth proceedings (cl 4(1)), subject to procedural safeguards such as certification of copies or inspection by the provider (cl 4(2)).
Confidentiality enforcement: Criminal offences target disclosure of the existence or nature of production orders and notices to preserve investigative secrecy and prevent tipping off (cl 9; cl 16). Exceptions include disclosure to obtain a document (with instructions not to inform the underlying person), for legal advice or in legal proceedings (cl 9(3)).
Reporting, parliamentary oversight and administrative accountability: The Parliamentary Joint Committee on Law Enforcement is assigned oversight (cl 19) and participating State police heads must provide annual reports to the Commonwealth Minister with enumerated statistics for tabling in Parliament (cl 20). These institutional mechanisms are enforcement‑adjacent: they allow political and parliamentary scrutiny of operational use.
Protections for compliant third parties: Financial institutions and their officers are protected from civil suits in relation to action taken under a notice, or taken in the mistaken belief that action was required (cl 14(1)). They are also treated as not to have been in possession of the information for Part 10.2 Criminal Code money‑laundering offences (cl 14(2)). These protections reduce legal risk to banks and promote compliance.
Interaction with Criminal Code offences
The scheme cross‑references the Criminal Code: false or misleading information or documents are criminal offences under ss 137.1 and 137.2 (referenced in notes to cl 10 and cl 17). Several defences impose evidential burdens on defendants, with express reference to Criminal Code subsection 13.3(3) for the evidential burden standard in cl 9(3), cl 10(3), cl 17(2).
Taken together, the enforcement design combines judicial authorisation, statutory secrecy offences, compliance incentives via institutional protections, and parliamentary oversight. Penalties are modest by serious‑crime standards but include imprisonment terms and monetary penalty units.
How it interacts with other laws
The Act is expressly drafted to create a cooperative overlay between Commonwealth unexplained‑wealth amendments and State special confiscation laws. It produces a multi‑layer interaction map spanning constitutional referral, concurrent operation, admissibility and money‑laundering law.
Referral to Commonwealth lawmaking and express amendment
The State refers matters to the Commonwealth under s 51(xxxvii) so the CPoC Act can be expressly amended. Sections 4(1)(a)-(c) describe the matters referred. The Act clarifies that an express amendment means direct textual amendment of the CPoC Act (s 3 definition), and that the State intends the Commonwealth may also act under other constitutional powers (s 4(5)). Schedule 3 elaborates the constitutional basis and application across participating and non‑participating States and Territories (s 14B).
Concurrent operation with State laws and special confiscation laws
The Act does not displace State special confiscation or unexplained wealth laws where they can operate concurrently. Subsection 14A(1) provides that the Act does not exclude or limit the operation of a State or Territory law capable of concurrent operation, but subsection 14A(2) makes clear that s 14A(1) does not apply to the national unexplained wealth provisions; Schedule 3 then sets out detailed rules for concurrency (s 14L). Section 14L(1) affirms non‑exclusion, and s 14L(3) explains that concurrent operation is not excluded merely because both regimes can prevent disposal, confiscate property, require payment or deal with prescribed matters. The national provisions explicitly operate alongside State special confiscation laws (s 14L(3)-(4)).
Admissibility and Criminal Code interaction
The Schedule places produced documents outside admissibility in criminal proceedings against the producing person, except for prosecutions for false or misleading information under Criminal Code ss 137.1 and 137.2 (Schedule 2 cl 5(2); cl 18(3)-(4)). Several defences require a defendant to meet an evidential burden, referencing Criminal Code subsection 13.3(3) in the notes to cl 9(3), cl 10(3) and cl 17(2).
Information‑sharing and taxation law
Schedule 2 cl 18 permits disclosure of information to specified authorities for delineated purposes, including the Australian Taxation Office for protecting public revenue (cl 18(2), item 4). The Schedule clarifies that disclosures under cl 18 do not prevent later disclosure under section 266A of the CPoC Act, and they do not affect admissibility of indirectly obtained information (cl 18(5)).
State‑Commonwealth procedural interaction and rollback
The Act anticipates Commonwealth express amendments to the CPoC Act and provides mechanisms for States to rollback effects for specified proceedings. Section 7 and Schedule 3 ss 14G-14K allow a Governor or State/Territory law to declare that an express amendment is not to apply to proceedings instituted in a specified 6 month window. That creates a temporal interaction where State proclamations can change which version of the CPoC Act applies to particular proceedings (s 7; ss 14G, 14J).
Effect on sharing of confiscated proceeds and transitional provisions
Schedule 3 includes transitional clauses addressing the effect of termination or cessation of participating status on existing investigations, orders and the sharing of proceeds (Schedule 3 cl 1-5). For example, if a State ceases to be participating, certain proceeds credited to the Confiscated Assets Account that relate to unexplained wealth orders may still be shared as if the State were participating (Schedule 3 cl 2(1)). Division 2 of Part 4‑3 (sharing proceeds) is referenced in this context.
Limits on information gathering and privacy
The national information gathering provisions impose content and scope limits: production orders are limited to business records or documents held by bodies corporate and exclude financial institutions’ accounting records (Schedule 2 cl 1(3)(b)-(c)). Notices to financial institutions limit transactional requests to periods up to 6 months (cl 12(1)(d) and (g)). Officials must consider urgency and hardship in setting accelerated compliance times (cl 2(3); cl 13(2)).
Overall, the Act is not an island. It is expressly designed to amend Commonwealth law and to operate concurrently with State confiscation regimes, to incorporate interaction rules on admissibility and sharing of proceeds, and to bring financial‑crimes law (Criminal Code Part 10.2) into the compliance environment via statutory protection for institutions that comply.
Amendment history
The Act itself both establishes and contemplates further textual amendments to the Commonwealth Proceeds of Crime Act and records an amendment footnote for one of its sections.
Founding and purpose: The Act is the Unexplained Wealth (Commonwealth Powers) Act 2018, with the main purpose set out at s 1(2): a referral of matters to the Commonwealth Parliament for s 51(xxxvii) purposes.
Commencement: Section 2 provides commencement is by proclamation. That gives the executive the usual power to fix the operative day(s) after assent.
Subsequent substitution noted in the text: Section 8 includes a footnote "s 8: Subst 2022 No 55, Sch 4.3." This indicates that s 8 of this Act was substituted by a 2022 amending instrument identified in the source as No 55, Schedule 4. The body of the Act as provided reflects that substitution.
Interaction with the Unexplained Wealth Legislation Amendment Act 2018: The Schedule material references and incorporates the Unexplained Wealth Legislation Amendment Act 2018 multiple times. Schedule 3 Part 2 explicitly treats that amending Act, and clauses 6-8 of Schedule 3 set out that amendments made by that amending Act apply to applications and documents regardless of when the relevant property, documents or transactions arose (Schedule 3 Part 2, cls 7-8). In practical terms, Schedule 3 supplies transitional advice on how later amendments operate with respect to antecedent conduct or documents.
Sunset and proclamation mechanics: The Act contains temporal mechanics for termination and extension. Text reference 1 and the amendment reference terminate on the sixth anniversary of the commencement day unless extended by proclamation under s 11. The Governor may fix an earlier termination day and may revoke such proclamations (ss 9-13). Those sections leave scope for future proclamations to extend, shorten or revoke the operation of the referral.
Regulations and transitional provisions: Section 14 grants regulation‑making power for matters necessary or convenient to carry out the Act, specifically mentioning transitional, application or savings matters relating to an offence becoming, or ceasing to be, a relevant offence (s 14(2)). Schedule 3 contains a dedicated Schedule 2 of transitional, application and saving provisions to deal with termination and cessation consequences (Schedule 3 cl 1-5).
Repeals and footnotes: Schedule 4 is marked as repealed with a citation. The source material records that Schedule 4 (Repealed) was repealed by an earlier instrument.
This is the amendment record reflected within the Act text supplied. The Act explicitly contemplates and accommodates future amendments to the CPoC Act by the Commonwealth, and it includes procedural rules (rollback, termination, extension) that permit States and Territories to respond legislatively to particular Commonwealth changes.
Litigation history
The text of the Act and Schedules supplied contains no references to judicial decisions or litigation testing its provisions. It provides a statutory architecture for referring matters to the Commonwealth and sets out the textual amendments and operational mechanics intended to be made to the Commonwealth Proceeds of Crime Act, but it does not record any case law, judicial interpretation or litigation outcomes.
Two observations flow from the absence of litigation material in the source.
First, the Act expressly relies on the s 51(xxxvii) referral mechanism and on other Commonwealth constitutional heads (Schedule 3 s 14B). That allocation creates questions that may be litigated in the future about constitutional validity, the proper scope of the Commonwealth’s power to legislate under a reference and the limits of concurrent operation with State law. The Act pre‑empts some of those issues by specifying the constitutional basis on which the Commonwealth’s national unexplained wealth provisions are to apply in participating and non‑participating States and Territories (s 14B). The source itself does not describe any judicial rulings on those questions.
Second, operative elements such as production orders, notice obligations on financial institutions and admissibility limitations could generate procedural or constitutional challenges in particular cases. For example, compelled production where legal professional privilege is set aside may give rise to litigation about the scope of privilege, admissibility and the proper balancing of investigatory needs and rights to a fair trial. Those potential litigation points are not addressed in the Act text and are not the subject of reported decisions in the source material.
Because the source is a statutory instrument without appended case law, any litigation history will need to be identified by searching judicial databases for subsequent cases that interpret the CPoC Act as amended in line with the Schedule text, or cases that directly challenge the referral, the production‑order mechanism, the nondisclosure offences or admissibility rules. The Act anticipates institutional review mechanisms , parliamentary oversight and reporting to the Minister , but those are political and administrative, not judicial, oversight tools (Schedule 2 cls 19-20).
In short, the Act sets up structures likely to be fertile ground for future litigation in areas of constitutional law, procedural fairness, privilege and admissibility; however, the source text contains no litigation history to cite.
Gotchas
The Act contains several drafting and operational features that create practical risks, timing sensitivities and compliance traps. Below are key “gotchas” to watch for, with textual sources cited.
Temporal exposure and the 6‑year default sunset: Text reference 1 and the amendment reference terminate on the sixth anniversary of commencement unless the Governor proclaims an extension (s 9(1); s 11). Agencies, practitioners and targets of investigations should not assume permanence. Any ongoing or planned strategy that relies on the referral must track proclamation timelines. The Governor may also bring forward termination or revoke proclamations under ss 11-13. That produces legal uncertainty for long‑running investigations and asset‑recovery strategies.
Rollback window and race dynamics: Sections 7 and Schedule 3 (ss 14G-14K) permit participating States or self‑governing Territories to roll back particular express amendments so they do not apply to proceedings instituted within a specific window, but the rollback proclamation must come into force within six months of the Commonwealth amendment being enacted (s 7 note; s 14G(1)(c)). This creates a timing race between Commonwealth enactment and State/territory proclamations; failing to act within the prescribed window can determine which legal regime applies to particular proceedings.
Production orders limited to corporate/business documents: A production order cannot require documents that are not in the possession or control of a body corporate or used or intended to be used in the carrying on of a business (Schedule 2 cl 1(3)(b)). That limits reach where relevant documents are held personally and not in a business context. Practitioners should design investigatory strategies in light of that threshold.
Exclusion of financial institutions’ accounting records: The Schedule expressly protects ordinary accounting records of financial institutions from production to authorised officers (cl 1(3)(c)). Financial institutions must still comply with notices under Part 2 but the carve‑out for accounting books narrows production order reach and may force investigators to rely on notices to institutions rather than production orders in certain contexts.
Privilege and admissibility lacework: Legal professional privilege, secrecy obligations and self‑incrimination do not excuse production (cl 5(1)(a)-(c)). However, documents produced by a natural person are not admissible against that person in criminal proceedings except for false document or statement offences (cl 5(2); cl 18(3)-(4)). That means compelled production can be used for civil or forfeiture proceedings but has limited direct use in a criminal prosecution against the producing natural person, with important strategic consequences.
No notice requirement for production order applications: An authorised officer need not give notice of an application for a production order (cl 1(5)). Combined with nondisclosure offences for communicating the existence of an order (cl 9), this increases the risk of surprise production and the need for confidentiality inside private organisations. Entities should have internal processes to respond to secret orders and to manage admissibility and disclosure risks.
Offences for disclosure of existence or nature of orders and notices: Disclosure of existence or nature of a production order or notice, when the instrument specifies nondisclosure, carries up to 2 years imprisonment or 120 penalty units (cl 9; cl 16). The statutory exceptions are narrow: to agents to obtain documents (with instructions not to inform the relevant person), for legal advice or in legal proceedings (cl 9(3)). Staff training and carefully curated disclosure protocols are essential to avoid inadvertent tipping off.
Short compliance windows and urgency discretion: Standard compliance times are 14 days, but magistrates or officials may specify earlier times of at least 3 days if urgency is shown and hardship considered (cl 2(2)-(3); cl 13(1)(e)-(2)). Financial institutions must be operationally capable of responding quickly and have processes for emergency production requests.
Evidential burden for statutory defences: Several defences require the accused to bear an evidential burden with reference to Criminal Code subsection 13.3(3) (notes in cl 9(3), cl 10(3), cl 17(2)). Practitioners should be aware that the statutory language may shift evidential obligations and plan evidence accordingly.
Broad disclosure permissions with limited constraints: Schedule 2 cl 18 allows disclosure to a swathe of authorities including Commonwealth bodies and the ATO. While disclosure is restricted to certain purposes and subject to court orders prohibiting disclosure, in practice the clause enables cross‑jurisdictional use of material, with attendant privacy and evidentiary consequences.
Concurrent operation complexity with State special confiscation laws: Section 14L permits concurrent operation even where the State law reaches property or actions outside the scope of a national restraining order, and vice versa (s 14L(3)-(4)). That can result in multiple overlapping orders and complex priority disputes about restraint, forfeiture and sharing of proceeds; Schedule 3 contains transitional rules to deal with cessation and termination but these add complexity rather than simplicity.
Reporting and parliamentary oversight obligations: Participating State police heads must report annually to the Minister (cl 20(1)). Failure to maintain accurate operational statistics will risk parliamentary scrutiny; agencies should implement data collection for the enumerated items.
These features create a mix of operational risk, timing sensitivity and compliance burden. They also create strategic decision points for prosecutors and lawyers tasked with designing investigations, advising clients served with orders, or managing institutional responses.
How to comply
This section sets out practical, source‑grounded steps for different actors to meet statutory obligations and reduce legal risk under the Act and the national cooperative schedule it inserts into the Commonwealth Proceeds of Crime Act.
For financial institutions
Designate a liaison officer and secure channels: Ensure a single, high‑level compliance contact to receive notices under Schedule 2 cl 12. That contact should be authorised to receive sensitive official communications and to coordinate legal advice.
Prepare to comply within statutory timeframes: Notices must be complied with within 14 days, or 3 days in urgent, justified cases (cl 13(1)(e); cl 13(2)). Implement procedures to extract account holder names, signatory information, current balances and up to 6 months’ transaction history (cl 12(1)(a)-(d), (g)). Keep capability to supply related accounts and stored value card transaction details where asked (cl 12(1)(e)-(g)).
Record keeping and certification: If documents are retained by authorised officers following production orders, the institution may require certification of true copies or request rights to inspect and extract (cl 4(2)). Keep clear logs of what was provided and ensure receipts and certifications are obtained.
Use statutory protections but document reliance: cl 14(1) grants immunity from suit for compliant actions and cl 14(2) treats the institution as not having been in possession of that information for money‑laundering offences. Document reliance on these protections in internal notes and retain contemporaneous records of the notice, the belief test applied by the official and the institution’s compliance steps.
Train staff on nondisclosure offences: The Act makes disclosure of the existence or nature of notices an offence with up to 2 years imprisonment (cl 16). Train staff on what may and may not be communicated and who in the institution may be told to obtain documents under cl 9(3) exception logic.
For persons and businesses served with production orders
Seek legal advice immediately: Production orders may be issued without notice (cl 1(5)) and privilege is not a ground to refuse production (cl 5(1)). Secure legal counsel to assess whether the document falls outside cl 1(3)(b) (i.e., not in possession of a body corporate or not used in business) or within the accounting records exclusion for financial institutions (cl 1(3)(c)).
Consider variation and statutory defences: If documents are essential to business operations, apply to the magistrate to vary the order to permit inspection rather than production (cl 6(1)-(2)). If compliance is delayed, retain evidence of all reasonable steps taken; cl 10(3) provides a defence where reasonable steps are taken and documents are provided as soon as practicable.
Preserve originals and avoid destruction: Destroying, defacing or interfering with documents subject to a production order is an offence (cl 11). Preserve originals, and if documents are retained by authorised officers, request certification or copies as permitted under cl 4(2).
For authorised State/Territory officers and officials
Prepare applications with oath and reasonable suspicion material: Magistrates require satisfaction on oath that the person is reasonably suspected of possessing the document (cl 1(3)(a)). Ensure affidavits supporting applications contain admissible, accurate material and avoid false or misleading statements (cl 8).
Consider hardship and urgency criteria: When seeking earlier compliance windows (3 days instead of 14), be prepared to demonstrate urgency and why hardship considerations are outweighed (cl 2(2)-(3); cl 13(1)(e)-(2)).
Use nondisclosure and secrecy judiciously: Where the order or notice specifies nondisclosure, be explicit about the effects in the order (cl 2(1)(f); cl 13(1)(f)). Understand the limited exceptions for disclosure under cl 9(3).
Maintain records for reporting: Collect and retain statistics required by cl 20(1) so that accurate annual reports can be provided to the Minister for tabling.
For magistrates and courts
Apply the statutory gatekeeping standard: Ensure the “reasonable suspicion” test on oath is satisfied before issuing a production order (cl 1(3)(a)). The order must contain the specified content items (cl 2(1)(a)-(g)) and balance urgency with hardship in setting compliance times (cl 2(3)).
Respect scope limits: Do not order documents outside the statutory description, including documents not in possession of a body corporate or not used in carrying on business, and do not order ordinary accounting records of financial institutions (cl 1(3)(b)-(c)).
For participating State agencies and Ministers
Track referral and proclamation timelines: Monitor the commencement day and the six year horizon for text reference 1 and amendment references (s 9(1)), and be ready to exercise or seek gubernatorial proclamation to extend or terminate as appropriate (ss 10-13; s 11).
Maintain oversight and reporting compliance: Ensure the police commissioner or head provides the annual reports required by cl 20(1) and that the Minister tables them within 15 sitting days (cl 20(1)-(2)). Be prepared to appear before the Parliamentary Joint Committee if summoned under cl 19(2).
For counsel advising targets or institutions
Map admissibility and privilege consequences: Understand that compelled production is available for unexplained wealth proceedings but is largely inadmissible in criminal proceedings against the producing natural person except for false document charges (cl 5(2); cl 18(3)-(4)). Structure defence or interlocutory strategy accordingly.
Assess concurrency with State special confiscation laws: Where State orders and national orders may both apply, advise on potential for overlapping restraint, forfeiture or payment orders and on priority and sharing regimes referenced in Schedule 3 and Division 2 of Part 4‑3 as applicable.
Operational checklist
Maintain up‑to‑date contact points and logbooks for notices and production orders.
Implement secure processes to receive and respond within 3-14 day windows.
Train staff on nondisclosure rules and the exceptions for obtaining documents.
Preserve original documents and maintain chain of custody.
Obtain legal advice before disclosing privileged communications or responding where documents are essential to business operations.
Record and report required statistics annually for oversight bodies.
These steps are direct responses to the textual obligations and mechanisms set out in Schedule 2 (cl 1-20) and the governance and proclamation mechanics in the principal Act (ss 2, 9-14).
text reference 1 means the reference to the Parliament of the Commonwealth of the matters covered by section 4 (1) (a).
text reference 2 means the reference to the Parliament of the Commonwealth of the matters covered by section 4 (1) (b).
unexplained wealth—see section 5.
unexplained wealth provisions means—
(a) section 20A and Part 2-6 of the Commonwealth Proceeds of Crime Act, and
(b) the other provisions of that Act in so far as they relate to section 20A and Part 2-6 of that Act, and
(c) instruments made under that Act for the purposes of a provision referred to in paragraph (a) or (b).
Note—
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
(2) Notes included in this Act (except in Schedules 1–4) do not form part of this Act.
4 Reference of matters
4 Reference of matters
4 Reference of matters
(1) The following matters are referred to the Parliament of the Commonwealth—
(a) the matters to which the pre-assent version of the Commonwealth Proceeds of Crime Act would relate if express amendments were made to it in the terms, or substantially in the terms, of the text set out in Schedules 1 and 2 to this Act but excluding matters to which that version otherwise relates,
(b) the matters to which the pre-assent version of the Commonwealth Proceeds of Crime Act would relate if express amendments were made to it in the terms, or substantially in the terms, of the text set out in Schedule 3 to this Act but excluding matters to which that version otherwise relates,
(c) the matters relating to unexplained wealth (not including a matter excluded by subsection (2)) and to information gathering, but only to the extent of the making of laws with respect to those matters by making express amendments of the Commonwealth Proceeds of Crime Act.
(2) The following matters are excluded for the purposes of subsection (1) (c)—
(a) the matter of including a provision in section 20A or Part 2-6 of the Commonwealth Proceeds of Crime Act that requires a person to pay an amount otherwise than by order of a court,
(b) the matter of including a provision in section 20A or Part 2-6 of the Commonwealth Proceeds of Crime Act that requires or permits property to be restrained, forfeited or seized otherwise than by order of a court.
(3) The operation of each paragraph of subsection (1) is not affected by any other paragraph.
(4) The reference of a matter under subsection (1) has effect only—
(a) if and to the extent that the matter is not included in the legislative powers of the Parliament of the Commonwealth (otherwise than by a reference for the purposes of section 51 (xxxvii) of the Constitution of the Commonwealth), and
(b) if and to the extent that the matter is included in the legislative powers of the Parliament of the State.
(5) To avoid doubt, it is the intention of the Parliament of the State that—
(a) the Commonwealth Proceeds of Crime Act may be expressly amended, or have its operation otherwise affected, at any time after the commencement of subsection (1) by provisions of Commonwealth Acts the operation of which is based on legislative powers that the Parliament of the Commonwealth has apart from under the references under subsection (1), and
(b) the Commonwealth Proceeds of Crime Act may have its operation affected, otherwise than by express amendment, at any time after the commencement of subsection (1) by provisions of instruments made or issued under that Act.
(6) Despite any other provision of this section, a reference under subsection (1) has effect for a period—
(a) beginning at the beginning of the commencement day, and
(b) ending at the beginning of the day fixed under this Act as the day on which the reference is to terminate,
but no longer.
5 Meaning of “unexplained wealth”
5 Meaning of “unexplained wealth”
5 Meaning of “unexplained wealth”
(1) For the purposes of section 4 (1) (c), unexplained wealth means property or wealth that might not have been lawfully acquired.
(2) For the purposes of subsection (1) and section 4 (2) (b), the meaning of lawfully acquired, property and wealth includes, but is not limited to, the meaning of those terms in the pre-assent version of the Commonwealth Proceeds of Crime Act.
6 Meaning of “information gathering”
6 Meaning of “information gathering”
6 Meaning of “information gathering”
For the purposes of section 4 (1) (c), information gathering means the production or provision of information for the purposes of, or relevant to, the taking of action, or the institution of proceedings, under a law of the State.
7 Rollback of particular express amendments
7 Rollback of particular express amendments
7 Rollback of particular express amendments
(1) For the purposes of section 14G of the Commonwealth Proceeds of Crime Act, the Governor may, by proclamation published on the NSW legislation website, declare that an express amendment of that Act (other than Subdivision B of Division 2 of Part 1-4) is not to apply to proceedings covered by subsection (3), (4) or (5) of that section.
Note—
To be effective for the purposes of section 14G of the Commonwealth Proceeds of Crime Act, the proclamation must come into force in the period of 6 months beginning on the day the amendment is enacted. On the coming into force of the proclamation, that Act applies to the proceedings as if the amendment had not been enacted.
(2) For the purposes of section 14J of the Commonwealth Proceeds of Crime Act, the Governor may, by proclamation published on the NSW legislation website, declare that an express amendment of that Act (other than Subdivision B of Division 2 of Part 1-4) is not to apply to—
(a) an application covered by subsection (3) of that section, or
(b) an order made as a result of an application referred to in paragraph (a) of this subsection, or
(c) a notice covered by subsection (4) of that section.
Note—
To be effective for the purposes of section 14J of the Commonwealth Proceeds of Crime Act, the proclamation must come into force in the period of 6 months beginning on the day the express amendment is enacted. On the coming into force of the proclamation, that Act applies to the application, order and notice as if the amendment had not been enacted.
8 Relevant offences
8 Relevant offences
8 Relevant offences
For the Commonwealth Proceeds of Crime Act, a serious criminal offence, within the meaning of the Criminal Assets Recovery Act 1990, section 6(2), is specified by this Act, other than—
(a) an offence specified in paragraph (c) or (h) of the definition, and
(b) an offence specified in paragraph (i) of the definition, but only to the extent to which the offence relates to an offence specified in paragraph (c) or (h) of the definition.
s 8: Subst 2022 No 55, Sch 4.3.
9 Termination of text reference 1 and amendment reference
9 Termination of text reference 1 and amendment reference
9 Termination of text reference 1 and amendment reference
(1) Subject to earlier termination under subsection (2), text reference 1 and the amendment reference terminate on the day that is the sixth anniversary of the commencement day or on a later day fixed by the Governor by proclamation under section 11 (1).
(2) Text reference 1 or the amendment reference terminates on a day that is earlier than the prescribed termination day if the Governor fixes that earlier day by proclamation under section 12 (1) (a) or (b) or section 13 (2) or (4) as the day on which the reference is to terminate.
10 Termination of text reference 2
10 Termination of text reference 2
10 Termination of text reference 2
(1) The Governor may, at any time, by proclamation published on the NSW legislation website, fix a day as the day on which text reference 2 is to terminate.
(2) The Governor may, by proclamation published on the NSW legislation website, revoke a proclamation published under subsection (1).
(3) A revoking proclamation has effect only if published before the day fixed under subsection (1).
(4) The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection.
11 Extension of period of reference by proclamation
11 Extension of period of reference by proclamation
11 Extension of period of reference by proclamation
(1) The Governor may, at any time before the prescribed termination day, by proclamation published on the NSW legislation website, fix a day that is later than the prescribed termination day as the day on which text reference 1 and the amendment reference are to terminate.
(2) More than one proclamation may be made under subsection (1).
12 Earlier termination of reference by proclamation
12 Earlier termination of reference by proclamation
12 Earlier termination of reference by proclamation
(1) The Governor may, at any time, by proclamation published on the NSW legislation website, fix a day that is earlier than the prescribed termination day as the day on which—
(a) text reference 1 is to terminate, or
(b) the amendment reference is to terminate.
(2) The Governor may, by proclamation published on the NSW legislation website, revoke a proclamation published under subsection (1), in which case the revoked proclamation is taken (for the purposes of section 9 (2)) never to have been published.
(3) A revoking proclamation has effect only if published before the day fixed under subsection (1).
(4) The revocation of a proclamation published under subsection (1) does not prevent publication of a further proclamation under that subsection.
(5) A proclamation under subsection (1) has effect despite any earlier proclamation published under section 11 (1).
13 Termination in particular circumstances
13 Termination in particular circumstances
13 Termination in particular circumstances
(1) Nothing in this section limits, or affects the operation of, section 9, 10, 11 or 12.
(2) The Governor may, by proclamation published on the NSW legislation website, fix a day as the day on which text reference 1 and the amendment reference are to terminate if the Commonwealth Parliament enacts an express amendment of the Commonwealth Proceeds of Crime Act that, in the opinion of the Governor, is inconsistent with the fundamental attributes of the unexplained wealth provisions.
(3) Without limiting subsection (2), an express amendment of the Commonwealth Proceeds of Crime Act that is inconsistent with the fundamental attributes of the unexplained wealth provisions includes an amendment to section 20A or Part 2-6 of that Act that has the effect of allowing a restraining order, payment order, seizure order or forfeiture order to be made under those provisions otherwise than by order of a court.
(4) For the purposes of section 14F of the Commonwealth Proceeds of Crime Act, the Governor may, by proclamation published on the NSW legislation website, fix a day as the day on which both text reference 1 and the amendment reference are to terminate, or the amendment reference only is to terminate, if the Commonwealth Parliament enacts an express amendment of section 14G or 14J (about rollback), or Division 2 of Part 4-3 (about sharing proceeds), of the Commonwealth Proceeds of Crime Act.
(5) The Governor may, by proclamation published on the NSW legislation website, revoke a proclamation published under subsection (2) or (4), in which case the revoked proclamation is taken (for the purposes of section 9 (2)) never to have been published.
(6) A revoking proclamation has effect only if published before the day fixed under subsection (2) or (4).
(7) The revocation of a proclamation published under subsection (2) or (4) does not prevent publication of a further proclamation under that subsection.
(8) A proclamation under subsection (2) or (4) has effect despite any earlier proclamation published under section 11 (1).
14 Regulations
14 Regulations
14 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) Without limiting subsection (1), the regulations may deal with matters of a transitional, application or savings nature relating to an offence becoming, or ceasing to be, a relevant offence.
Schedule 1 Text for amendments extending the main unexplained wealth provisions to certain offences against the laws of participating States
Schedule 1 Text for amendments extending the main unexplained wealth provisions to certain offences against the laws of participating States
Schedule 1 Text for amendments extending the main unexplained wealth provisions to certain offences against the laws of participating States
1 Subparagraph 20A(1)(g)(i)
1 Subparagraph 20A(1)(g)(i)
1 Subparagraph 20A(1)(g)(i)
After “*foreign indictable offence”, insert “, a *relevant offence of a *participating State”.
2 Subparagraph 20A(1)(g)(ii)
2 Subparagraph 2
This is an opening excerpt, not the complete document.