Unexplained Wealth Order

In New South Wales the Criminal Assets Recovery Act 1990 allows the New South Wales Crime Commission to apply to the Supreme Court for an unexplained wealth order. An unexplained wealth order is an order requiring a person to pay the state Treasurer an amount of money the court has assessed as being derived from criminal activity.

When Can An Unexplained Wealth Order Be Made?

The first step in applying for this order is to apply to the Supreme Court for an assessment or the value of the unexplained wealth. When assessing the amount of an unexplained wealth order the Supreme Court must consider:

• the value of any interest in property directly or indirectly acquired by the accused because of illegal activity; and
• the value of any service, benefit or advantage received by the accused as a result of illegal activity; and
• the current or previous wealth of the person.

The second step is to assess the amount that should be payable to the Treasurer under an unexplained wealth order. In making this assessment, the Supreme Court should deduct the following from the total payable:

• the value of interests in property the accused previously forfeited under another forfeiture order under this Act or those made in another jurisdiction;
• the total previously paid or payable by the accused under previous orders made under this Act or those in another jurisdiction;
• the value of interests the accused forfeited under the Confiscation of Proceeds of Crime Act 1989 (NSW); or
• if any amounts have been paid or are payable under a drug proceeds order or pecuniary penalty order (in NSW or interstate).

After the final amount has been determined, the Commission can apply to the Supreme Court for this order if:

• it has reasonable grounds to believe that the person derived the property from criminal activity; or
• it has reasonable grounds to believe that their wealth was derived from the criminal activity of another person; and
• the criminal activity only took place in NSW and did not relate to crime in another state or a Commonwealth offence.

Can I Be Discharged From An Unexplained Wealth Order?

The NSW Trustee and Guardian can discharge a person if it has taken control of an interest in the property under a restraining order.

How Is The Order Enforced?

If a person is subject to an unexplained wealth order then it will be enforced as though it were a civil debt payable to the state.

Seek Legal Advice

If you have received written notice of an unexplained wealth order application, it is imperative that you seek legal advice at the earliest opportunity.

We can be contacted on 1300 038 223 or you can send us an email.