Unexplained Wealth (Commonwealth Powers) Act 2018 (NSW)

Unexplained Wealth (Commonwealth Powers) Act 2018 No 42 An Act 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; and for other purposes. 1 Name and purpose of Act (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 This Act commences on a day or days to be appointed by proclamation. 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version of the Commonwealth Proceeds of Crime Act means the Proceeds of Crime Act 2002 of the Commonwealth, as originally enacted and as subsequently amended by amendments enacted at any time before the assent date.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 (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" (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" 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 (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 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. 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 (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 (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 (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 (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 (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 1 Subparagraph 20A(1)(g)(i) After "*foreign indictable offence", insert ", a *relevant offence of a *participating State". 2 Subparagraph 20A(1)(g)(ii) After "foreign indictable offence", insert ", a relevant offence of a participating State". 3 Subparagraph 20A(3)(c)(i) After "*foreign indictable offence", insert ", a *relevant offence of a *participating State". 4 Subparagraph 20A(3)(c)(ii) After "foreign indictable offence", insert ", a relevant offence of a participating State". 5 After subparagraph 179E(1)(b)(ii) Insert— (iia) a *relevant offence of a *participating State; 6 After subparagraph 179E(2)(b)(ii) Insert— (iia) a *relevant offence of a *participating State; 7 After subparagraph 322(4A)(a)(ii) Insert— (iia) a *relevant offence of a *participating State; 8 Section 338 Insert— relevant offence of a *participating State means an offence of a kind that is specified by the *referral Act or *adoption Act of the State. Schedule 2 Text for amendments concerning information gathering under the national cooperative scheme on unexplained wealth 1 At the end of Division 2 of Part 1-4 Add— Subdivision D—Other matters 14M Information gathering by participating States and self-governing Territories Schedule 1 has effect. 2 At the end of paragraph 266A(1)(b) Add "or clause 18 of Schedule 1". 3 Section 338 Insert— authorised State/Territory officer has the meaning given in subclause 1(2) of Schedule 1. 4 Section 338 (definition of production order) After "202(1)", insert ", or subclause 1(1) of Schedule 1,". 5 Section 338 Insert— unexplained wealth legislation of a State or *self-governing Territory means a law of the State or Territory that is prescribed by the regulations. 6 In the appropriate position Insert— Schedule 1—Information gathering by participating States and self-governing Territories Note: See section 14M. Part 1—Production orders 1 Making production orders (1) A magistrate may make an order (a production order) requiring a person to— (a) produce one or more documents referred to in subclause (6) to an *authorised State/Territory officer of a *participating State or *self-governing Territory; or (b) make one or more documents referred to in subclause (6) available to an authorised State/Territory officer of a participating State or self-governing Territory for inspection. (2) An authorised State/Territory officer of a *participating State or *self-governing Territory means— (a) a person who may apply for, or make an affidavit in support of, a restraining order under a *special confiscation law of the State or Territory; or (b) if New South Wales is a participating State—the Commissioner and Assistant Commissioners of the New South Wales Crimes Commission; or (c) for a self-governing Territory—a person of a kind prescribed by the regulations in relation to the Territory. (3) However— (a) the magistrate must not make a *production order unless the magistrate is satisfied by information on oath that the person is reasonably suspected of having possession or control of such documents; and (b) a production order cannot require documents that are not— (i) in the possession or under the control of a body corporate; or (ii) used or intended to be used in the carrying on of a business; to be produced or made available to an *authorised State/Territory officer of the *participating State or *self-governing Territory concerned; and (c) a production order cannot require any accounting records used in the ordinary business of a *financial institution (including ledgers, day-books, cash-books and account books) to be produced to an authorised State/Territory officer of the participating State or self-governing Territory concerned. (4) The *production order can only be made on application by an *authorised State/Territory officer of a *participating State or *self-governing Territory. (5) The *authorised State/Territory officer need not give notice of the application to any person. (6) Each of the following is a document that may be the subject of a *production order— (a) a document relevant to identifying, locating or quantifying property of a person for the purposes of— (i) determining whether to take any action in relation to the person under the *unexplained wealth legislation of the *participating State or *self-governing Territory concerned; or (ii) proceedings in relation to the person under the unexplained wealth legislation of the participating State or self-governing Territory concerned; (b) a document relevant to identifying or locating any document necessary for the transfer of property of such a person; (c) a document that would assist in the reading or interpretation of a document referred to in paragraph (a) or (b). 2 Contents of production orders (1) A *production order must— (a) specify the nature of the documents required; and (b) specify the place at which the person must produce the documents or make the documents available; and (c) specify the time at which, or the times between which, this must be done; and (d) specify the form and manner in which those documents are to be produced; and (e) specify the name of the *authorised State/Territory officer of the State or Territory who, unless he or she inserts the name of another authorised State/Territory officer of the State or Territory in the order, is to be responsible for giving the order to the person; and (f) if the order specifies that information about the order must not be disclosed—set out the effect of clause 9 (disclosing existence or nature of production orders); and (g) set out the effect of clause 10 (failing to comply with an order). (2) The time or times specified under paragraph (1)(c) must be— (a) at least 14 days after the day on which the *production order is made; or (b) if the magistrate who makes the production order is satisfied that it is appropriate, having regard to the matters specified in subclause (3), to specify an earlier time—at least 3 days after the day on which the production order is made. (3) The matters to which the magistrate must have regard for the purposes of deciding whether an earlier time is appropriate under paragraph (2)(b) are— (a) the urgency of the situation; and (b) any hardship that may be caused to the person required by the *production order to produce documents or make documents available. 3 Powers under production orders The *authorised State/Territory officer may inspect, take extracts from, or make copies of, a document produced or made available under a *production order. 4 Retaining produced documents (1) The *authorised State/Territory officer may also retain a document produced under a *production order for as long as is necessary for the purposes of the *unexplained wealth legislation of the *participating State or *self-governing Territory concerned. (2) The person to whom a *production order is given may require the *authorised State/Territory officer to— (a) certify in writing a copy of the document retained to be a true copy and give the person the copy; or (b) allow the person to do one or more of the following— (i) inspect the document; (ii) take extracts from the document; (iii) make copies of the document. 5 Privilege against self-incrimination etc. does not apply (1) A person is not excused from producing a document or making a document available under a *production order on the ground that producing the document or making it available— (a) would tend to incriminate the person or expose the person to a penalty; or (b) would breach an obligation (whether imposed by an enactment or otherwise) of the person not to disclose the existence or contents of the document; or (c) would disclose information that is the subject of *legal professional privilege. (2) However, in the case of a natural person, the document is not admissible in evidence in a *criminal proceeding against the person, except in proceedings 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. 6 Varying production orders (1) A person who is required to produce a document to an *authorised State/Territory officer under a *production order may apply to— (a) the magistrate who made the order; or (b) if that magistrate is unavailable—any other magistrate; to vary the order so that it instead requires the person to make the document available for inspection. (2) The magistrate may vary the *production order if satisfied that the document is essential to the person's business activities. 7 Jurisdiction of magistrates A magistrate in a State or a *self-governing Territory may issue a *production order relating to one or more documents that are located in— (a) that State or Territory; or (b) another State or self-governing Territory if he or she is satisfied that there are special circumstances that make the issue of the order appropriate; or (c) a *non-governing Territory. 8 Making false statements in applications 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, an application for a *production order. Penalty: Imprisonment for 12 months or 60 penalty units, or both. 9 Disclosing existence or nature of production orders (1) A person commits an offence if— (a) the person is given a *production order; and (b) the order specifies that information about the order must not be disclosed; and (c) the person discloses the existence or nature of the order to another person. Penalty: Imprisonment for 2 years or 120 penalty units, or both. (2) A person commits an offence if— (a) the person is given a *production order; and (b) the order specifies that information about the order must not be disclosed; and (c) the person discloses information to another person; and (d) that other person could infer the existence or nature of the order from that information. Penalty: Imprisonment for 2 years or 120 penalty units, or both. (3) Subclauses (1) and (2) do not apply if— (a) the person discloses the information to an employee, *agent or other person in order to obtain a document that is required by the *production order in order to comply with it, and that other person is directed not to inform the person to whom the document relates about the matter; or (b) the disclosure is made to obtain legal advice or legal representation in relation to the order; or (c) the disclosure is made for the purposes of, or in the course of, legal proceedings. Note: A defendant bears an evidential burden in relation to the matters in subclause (3): see subsection 13.3(3) of the Criminal Code. 10 Failing to comply with production orders (1) A person commits an offence if— (a) the person is given a *production order; and (b) the person fails to comply with the order; and (c) the person has not been notified of sufficient compliance under subclause (2). 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) A person is notified of sufficient compliance under this subclause if— (a) the person gives an *authorised State/Territory officer of the *participating State or *self-governing Territory concerned a statutory declaration stating that the person does not have possession or control of the document specified in the *production order; and (b) the officer notifies the person in writing that the statutory declaration is sufficient compliance with the order. (3) It is a defence to an offence against subclause (1) if— (a) the person fails to comply with the *production order only because the person does not produce the document specified in the order within the time specified in the order; and (b) the person took all reasonable steps to produce the document within that time; and (c) the person produces the document as soon as practicable after that time. Note: A defendant bears an evidential burden in relation to the matters in subclause (3) (see subsection 13.3(3) of the Criminal Code). 11 Destroying etc. documents subject to production orders A person commits an offence if— (a) the person destroys, defaces or otherwise interferes with a document; and (b) a *production order is in force requiring the document to be produced or made available. Penalty: Imprisonment for 6 months or 30 penalty units, or both. Part 2—Notices to financial institutions 12 Giving notices to financial institutions (1) An official specified in subclause (3) of a *participating State or *self-governing Territory may give a written notice to a *financial institution requiring the institution to provide to an *authorised State/Territory officer of the participating State or the Territory any information or documents relevant to any one or more of the following— (a) determining whether an *account is or was held by a specified person with the financial institution; (b) determining whether a particular person is or was a signatory to an account; (c) if a person holds an account with the institution, the current balance of the account; (d) details of transactions on an account over a specified period of up to 6 months; (e) details of any related accounts (including names of those who hold or held those accounts); (f) determining whether a *stored value card was issued to a specified person by a financial institution; (g) details of transactions made using such a card over a specified period of up to 6 months; (h) a transaction conducted by the financial institution on behalf of a specified person. (2) The official must not issue the notice unless the official reasonably believes that giving the notice is required— (a) to determine whether to take any action under the *unexplained wealth legislation of the State or Territory; or (b) in relation to proceedings under the unexplained wealth legislation of the State or Territory. (3) The officials of a *participating State or *self-governing Territory who may give a notice to a *financial institution are— (a) the Commissioner or head (however described) of the police force or police service of the State or Territory; or (b) the Director of Public Prosecutions, or a person performing a similar function, appointed under a law of the State or Territory; or (c) if New South Wales is a participating State—the Commissioner and Assistant Commissioners of the New South Wales Crimes Commission; or (d) for a self-governing Territory—a person of a kind prescribed by the regulations in relation to the Territory. 13 Contents of notices to financial institutions (1) The notice must— (a) state that the official giving the notice believes that the notice is required— (i) to determine whether to take any action under the *unexplained wealth legislation of the State or Territory; or (ii) in relation to proceedings under the unexplained wealth legislation of the State or Territory; and (b) specify the name of the *financial institution; and (c) specify the kind of information or documents required to be provided; and (d) specify the form and manner in which that information or those documents are to be provided, having regard to the record keeping capabilities of the financial institution (to the extent known to the official); and (e) specify that the information or documents must be provided no later than— (i) 14 days after the giving of the notice; or