George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

The opposition supports these amendments. Some of them are of a technical character. The expansion of the grounds for the revocation of unexplained wealth orders are, however, of a more substantive character and they reflect the outcome of the discussions between the Attorney-General and me. The opposition thanks the government for taking into account the opposition’s concerns in this regard. As I have indicated, the opposition will support the amendments.

Question agreed to.

I move opposition amendment (1) on sheet 6018 revised:

(1)    Schedule 1, item 5, page 3 (line 23), omit “must”, substitute “may”.

Opposition amendment (1) would substitute for the word ‘must’ the word ‘may’ in what would be section 20A of the act. As the bill currently stands, the scheme of the act would be to deny a court with proceeds jurisdiction—that is, the jurisdiction to make an unexplained wealth order—any discretion to refuse to do so, so long as the conditions set out in subsection (1) are satisfied. Those conditions, and there are five of them in subsections (c) through to (g), are of an essentially formal character. By subsection (c) it is required that:

the DPP applies for the order—

That is a procedural issue only. Subsection (d) reads:

(d) 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 …

I will come back to (d), which is a substantive matter. Subsection (e) reads:

(e) that ‘affidavit requirements in subsection (3) ... have been met …

That is a formal matter of proof. Subsection (f) reads:

(f) the court is satisfied that the authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds …

That is a threshold requirement, and subsection (g) reads:

(g) there are reasonable grounds to suspect either or both of the following:

(i) that the person has committed an offence against a law of the Commonwealth, a foreign indictable offence or a State offence that has a federal aspect;

(ii) that the whole or any part of the person’s wealth was derived from an offence—

That is a substantive matter as well. When one then examines the way in which the substantive matters are to be proved—that is, the matters in subsections (d) and (g)—they are to be proved by way of an affidavit. These applications are, of course, ex parte applications, so the person against whose interests such an order would be made does not have a right to be heard at that stage of the proceeding and there is, therefore, no opportunity for the deponent to the affidavit which proves up the substantive matters concerning which the court is required to be satisfied to cross-examine that deponent on their affidavit. Given that the substantive matters in (d) and (g) will, as a matter of course, have been sworn to and there is no capacity to test the matters deposed to in the applicant’s affidavit, it seems to the opposition that it is necessary that the court should have a discretion to refuse to make an order if it is not satisfied sufficiently that it is a proper case.

The analogy in unexplained wealth applications is with applications in civil proceedings for injunctions called Mareva injunctions and Anton Piller orders, which are different but somewhat related species of order, which are sought, in the first instance, ex parte. It is unthinkable that a civil court to which application is made for an ex parte injunction to tie up a person’s assets should not have a discretion to refuse to make the order in its general jurisdiction—for example, if the court were not satisfied that the application had been made in a timely fashion, if the court were not satisfied as to the sufficiency of the material placed before it, if the court were concerned that there had been abusive or inappropriate conduct so that there was an issue as to the good faith in which the application were brought, and there are various other discretionary grounds as well. It is intrinsically in the nature of an injunction as an equitable remedy that it is a discretionary order of the court and an extraordinary order of the court. Although this legislation deals with the criminal law rather than the civil law, it seems to the opposition that a fortiori if a court would be so circumspect and concerned to inform itself of the sufficiency of the material before it before making a civil order tying up a person’s assets on an ex parte basis, in a criminal case particularly, as I said in my speech in the second reading debate, where the commission of no offence is proved or required to be proved but merely the holding of a suspicion by the complainant, it is even more necessary that the discretionary safeguards, which courts always have when orders of this kind are made, should be preserved in this legislation as well.

As I said in my speech in the second reading debate, one must always be conscious of the unusual and draconian power which a court is being asked to exercise and, in the first instance in an application under what would be section 20A of the act, is being asked to exercise in circumstances where the person against whose interests the order is made does not have the opportunity to be heard at that stage of the proceedings to test the sufficiency, strength or accuracy of the allegations made against them. The opposition is strongly of the view that the discretion of the court should be protected, as the discretion of the court always ought to be protected, particularly when ex parte applications are made to it.