Restraining Orders relating to unexplained wealth – s 20A

Restraining Orders pertaining to unexplained wealth were introduced via the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth). The unique element of unexplained wealth orders is that there are reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired.

Total wealth is defined as the sum of all of the values of the property that constitutes the person’s wealth.[1]

Wealth is defined as:[2]

• Property owned by the person at any time;
• Property that has been under the effective control of the person at any time;
• Property that the person has disposed of (whether by sale, gift, or otherwise) or consumed at any time;

including property owned, effectively controlled, disposed of or consumed before the commencement of this Part.

Wealth is only considered to be lawfully acquired if:[3]

• The wealth was lawfully acquired; and
• The consideration given for the wealth was lawfully acquired; and
• The wealth is not proceeds or an instrument of the offence.

The required elements for a successful s 20A Restraining Order are:

• The application is heard before a court with proceeds jurisdiction;
• A proceeds of crime authority applies for the order;
• There are reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired;
• Affidavit requirements of the authorised officer are met;[4]
• The court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds;
• There are reasonable grounds to suspect either or both of the following:
  • That the person has committed an offence against a law of the Commonwealth;[5]
  • That at least part of the person’s wealth was derived or realised, directly or indirectly, from an offence against a law of the Commonwealth.[6]

The property in question can either be specified property or all property of the suspect.[7] The order can specify that the Restraining Order covers property that is acquired by the suspect after the court makes the order.[8]

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[1] Ss 338 & 179G(2) Proceeds of Crime Act 2002 (Cth).

[2] SS 338 & 179G(1) Proceeds of Crime Act 2002 (Cth).

[3] Ss 338 & 336A Proceeds of Crime Act 2002 (Cth).

[4] See S 20A(3) Proceeds of Crime Act 2002 (Cth).

[5] Or a foreign indictable offence or a State offence that has a federal aspect – s 20A(1)(g)(i) Proceeds of Crime Act 2002 (Cth).

[6] Or a foreign indictable offence or a State offence that has a federal aspect – s 20A(1)(g)(ii) Proceeds of Crime Act 2002 (Cth).

[7] S 20A(2)(a) Proceeds of Crime Act 2002 (Cth).

[8] S 20A(6) Proceeds of Crime Act 2002 (Cth).

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