Commonwealth Unexplained Wealth Amendment Bill 2018 Referred to Committee

Wednesday 25 July 2018 @ 9.23 a.m. | Crime | Legal Research

The Unexplained Wealth Legislation Amendment Bill 2018  (Cth) was introduced into the House of Representatives by the Minister for Home Affairs on 20 June 2018. On 28 June 2018 the Bill's provisions were referred to the Senate Legal and Constitutional Affairs Legislation Committee (the Committee) for inquiry and report by 6 August 2018. Submissions to the Committee closed on 13 July 2018.  The main purpose of the Bill is to give effect to the National Cooperative Scheme on Unexplained Wealth (the national scheme).

Background

The Bill amends the Proceeds of Crime Act 2002 (Cth) ("the POC Act") to give effect to the national scheme that was recommended by the Independent Report of the Panel on Unexplained Wealth ("the Report").  The Report was released on February 2014 by former police commissioners, Mr Ken Moroney and Mr Mick Palmer, and negotiated by the Officials-Level Working Group on Unexplained Wealth under the auspices of the former Law, Crime and Community Safety Council.

According to the Explanatory Memorandum, the view of the government is that  depriving criminals of their wealth is a key element in combating serious and organised crime and the unexplained wealth laws provide "a valuable tool to law enforcement to confiscate assets where a person linked to criminal activity cannot reasonably demonstrate that these assets have been lawfully obtained."

Currently, Commonwealth unexplained wealth orders can only be used in relation to a person or property that is linked to a Commonwealth offence, foreign offence or State offence with a federal aspect.  This position sees national law enforcement being increasingly frustrated when serious and organised crime groups are "constantly working across jurisdictions".  The government's aim in the Bill is to establish a national scheme that will provide a national approach to targeting unexplained wealth, "enabling all participating jurisdictions to work together to effectively deprive these criminals of their wealth, irrespective of the jurisdiction in which they operate."

What the Bill Does

The Bill, according to the Explanatory Memorandum, is supplemented by an Intergovernmental Agreement on the National Cooperative Scheme on Unexplained Wealth ("the NCSUW agreement") and State Bills, and and gives effect to the following aspects of the national scheme:

  • the extension of the scope of Commonwealth unexplained wealth restraining orders (POC Act, section 20A) and unexplained wealth orders (POC Act, section 179E) to Territory offences (specifically ‘self-governing Territories’ including the Australian Capital Territory and the Northern Territory) and ‘relevant offences’ defined in the legislation of participating States;
  • allowing participating State and Territory agencies to access Commonwealth information gathering powers under the POC Act for the investigation or litigation of unexplained wealth matters under State or Territory unexplained wealth legislation, through inserting new provisions based on current production orders and notices to financial institutions powers
  • making provisions to ensure the continued effective operation of State and Territory confiscation regimes
  • the creation of new equitable sharing arrangements to ensure that the contributions of Commonwealth, State, Territory and foreign law enforcement entities to investigating and litigating proceeds of crime matters and associated criminal proceedings are appropriately recognised through the sharing of recovered proceeds, and
  • amendments to the Telecommunications (Interception and Access) Act 1979 (Cth) ("the TIA Act") allowing Commonwealth, Territory and participating State law enforcement agencies to use, communicate and record lawfully intercepted information in relation to unexplained wealth investigations and proceedings.

Submission to the Committee

Several submissions have been made to the Committee and can be accessed here

The  Police Federation of Australia  (the PFA)which represents  62,000 police officers across Australia, in its submission concludes that a National Scheme should be supported and that the Bill should be passed saying:

"The PFA therefore supports the Unexplained Wealth Legislation Amendment Bill  2018 and implores all states to enact legislation, consistent with the Bill to ensure a   truly national unexplained wealth regime is implemented."

In reaching the above conclusion, the PFA indicates that it has taken 10 years to develop the scheme to this point.  Their submission quotes Justice Moffitt, former President of the NSW Court of Appeal as indicating why such measures as unexplained wealth legislation are not uncommon:

“It has long been accepted that tax authorities can call on taxpayers to  account for assets which appear to exceed that which their income could  be expected to produce. It is difficult to see  why in the face of serious  organised crime a statute could not be drawn to provide that in prescribed  circumstances the owner or custodian of money or assets may be called on to explain how he came by them …”

In its submission Civil Liberties Australia (the CLA) says that it believes that unexplained wealth laws and similar legislation at the state and territory level have been ". . .  implemented and applied in ways contrary to their original  intent". CLA says in its submission that unexplained wealth laws are not conviction-based, and  remove the need to prove a person has engaged in any criminal activity, or indeed that any offence has even been committed. Further, the CLA argue that unexplained wealth laws reverse the burden of proof by requiring a person to  prove on the balance of  probabilities that assets are not the proceeds of crime. This according to the CLA undermines the presumption of innocence which is "central to our  system of justice and of the rule of law".

The CLA submission also questions the stated purpose for introducing unexplained wealth laws and ask whether it has been adhered to so far.  The submission says that such laws were introduced on the justification that they would be used to combat serious and organised crime, where the criminals were using such sophisticated business models that it would be extremely difficult to secure convictions against senior-level crime bosses.  However, the CLA has expressed their concerns that this was not always so in practice. To support this the CLA refers to the "one systematic review of the operation of unexplained wealth laws" carried out in Tasmania [the Independent Review of Part 9 Crime (Confiscation of Profits) Act (Tas) 2017] which included details provided by the state’s DPP which showed that unexplained wealth laws have been used to recover "amounts of as little as $3000". Further, CLA points out that none of  the individuals described in that Review (in Annexure C) "could be described as a  'senior organised crime figure'". In fact the Review states "unambiguously" that the application of unexplained wealth laws in Tasmania was not confined to senior organised crime figures and  was applied to anyone who may have profited from crime or whose wealth was unexplained (paragraph 6.9 of the Review).

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