Between 2000 and 2010 politicians wanted something done about a public perception that there were drug dealers and others in the community who were, for whatever reason, supposedly ‘untouchable’ using criminal law. It would sometimes be said that they 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.

The reality is that these powers are very rarely used. The State provisions have been used only a handful of times, and not at all since 2011. This appears set to change as a result of the passage through State Parliament on 28 June 2018 of amendments giving the Corruption and Crime Commission the power to pursue Unexplained Wealth under the Criminal Property Confiscation Act 2000 (Cth). For more information, review my blog post.

There is also a current proposal to establish a National Scheme for Unexplained Wealth matters. However, it seems likely that it will be limited to NSW, ACT and the NT.

The case law on Unexplained Wealth (sometimes referred to as ‘UEW’) is thin to say the least. The leading decision nationally on unexplained wealth is arguably Burnett v Northern Territory (2007) 228 FLR 365; [2007] NTCA 7. It relates to the Northern Territory legislation which is modelled on the WA Act.

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 inserted by the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010, No 3 of 2010)) The explanatory memorandum to the introducing Bill for these laws said:

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.

The Federal laws were amended in 2011 and again in 2015, each time without having been previously used. ((Amendments were made by the Crimes Legislation Amendment Act (No. 2) 2011, No 174 of 2011; and the Crimes Legislation Amendment (Unexplained Wealth and Other Measures) Act 2015, No 6 of 2015.))

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 [2017] WASC 114. The decision has been anonymised.

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:

Of course many of the concepts found in the unexplained wealth provisions of the Proceeds of Crime Act have common features with other parts of the Act. Some of the case law on money laundering may also be of some use: section 400.9(2)(c) Criminal Code (Cth) effectively makes it an offence to possess unexplained wealth. That provision has been used on occasion.