“The overarching purpose behind these amendments is to improve the ability of law enforcement agencies to target upper‑echelon organised crime figures that derive the greatest financial benefit from offences, but are seldom linked by evidence to the commission of an offence.”Explanatory memorandum to the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2010 (Cth)
Background to the Unexplained Wealth laws
Between 2000 and 2010 governments wanted to address a public perception that there were drug dealers and others in the community who were, for whatever reason, supposedly ‘untouchable’. It would sometimes be said that that high level dealers never handled the drugs themselves so it was difficult to arrest and prosecute them.
As a result the Criminal Property Confiscation Act 2000 (WA) and the Proceeds of Crime Act 2002 (Cth) each contain “unexplained wealth” powers. The Federal laws were introduced in 2010 following a riot at Sydney airport between rival Outlaw Motor Cycle Gangs which resulted in the death of one member.
Historically the Unexplained Wealth (sometimes referred to as ‘UEW’) powers have been rarely used.
Consequently, the case law on Unexplained Wealth is thin. The leading decision nationally on unexplained wealth is arguably Burnett v Northern Territory (2007) 228 FLR 365;  NTCA 7. It relates to the Northern Territory legislation which is modelled on the Western Australian Criminal Property Confiscation Act.
Between 2011 and 2018 the WA powers were not used. On 28 June 2018, the WA Parliament gave the Corruption and Crime Commission (“CCC”) the power to pursue Unexplained Wealth under the Criminal Property Confiscation Act 2000 (Cth). For more information, review my blog post. Since then I have been involved in three matters commenced by the CCC that at least have the potential to become unexplained wealth matters. One of those matters is likely to be dealt with in that way.
Federal Unexplained Wealth matters
The Federal laws, being sections 20A and Part 2-6 of the Proceeds of Crime Act 2002, have been on the statute books since 2010. They were amended in 2011 and again in 2015, each time without having been previously used.
Finally in 2017 they were used for the first time, as it happens in Western Australia. On 19 April 2017 Justice Banks-Smith published her reasons for granting a restraining order on unexplained wealth grounds under s 20A Proceeds of Crime Act 2002 (Cth). See Re Application under s 20A Proceeds of Crime Act 2002; ex parte Commissioner of the AFP  WASC 114. The decision has been anonymised. I have been briefed in this matter. I am also briefed in another UEW matter under the federal POCA in Victoria. There is a third case that has been commenced under the federal POCA. All three cases that have been started under the federal POCA remain before the Court, without having been listed for trial.
National Scheme for Unexplained Wealth
At a Federal level, 2018 also saw the establishment of a National Scheme for Unexplained Wealth matters. NSW was the only State to join the Scheme. Canberra used the territories power to compel the ACT and the NT to join.
Given the lack of case law on unexplained wealth generally, and the complete absence of any under the Federal Proceeds of Crime Act, those involved in defending the first cases will want to look very closely at the wealth of extrinsic material available. Section 15AB(1)(b) of the Acts Interpretation Act 1901 (Cth) allows regard to be had to a wide range of extrinsic material “to determine the meaning of the provision when: (i) the provision is ambiguous or obscure; or (ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable”.
The relevant extrinsic material includes:
- The explanatory memoranda and parliamentary debates on each of the amending Acts;
- The March 2002 report of the Federal Parliamentary Joint Committee on Law Enforcement entitled Inquiry into Commonwealth unexplained wealth legislation and arrangements; and
- The Inquiry home page for the above joint committee inquiry, which includes transcripts and submissions.
Of course many of the concepts found in the unexplained wealth provisions of the Proceeds of Crime Act and the Criminal Property Confiscation Act have common features with other parts of those Acts.
There is case law under the Criminal Assets Recovery Act 1990 (NSW) that may also be of general assistance. The case law on money laundering may also be of some use. For example, section 400.9(2)(c) of the Criminal Code (Cth) effectively makes it an offence to possess unexplained wealth. That provision has been far more widely used.
Unexplained Wealth barrister
For specific advice please contact me directly. I am happy to take instructions in relation to unexplained wealth matters under the:
- Proceeds of Crime Act 2002 (Cth);
- Criminal Property Confiscation Act 2002 (WA);
- Criminal Assets Recovery Act 1990 (NSW);
- Confiscation Act 1997 (Vic);
- Criminal Property Forfeiture Act 2002 (NT);
- Serious and Organised Crime (Unexplained Wealth) Act 2009 (SA);
- Criminal Proceeds Confiscation Act 2002 (QLD); and
- Crime (Confiscation of Profits) Act 1993 (Tas).