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

I thank the minister for her indication of the government’s willingness to accept the entirety of the opposition’s amendments. In order to save the time of the chamber I therefore seek leave to move all of the opposition’s amendments together.

Leave granted.

I move:

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

(2)    Schedule 1, item 5, page 5 (after line 19), after subsection 20A(3), insert:

Legal expenses

     (3A)    Without limiting the manner and circumstances that may be specified in an order under paragraph (1)(b), the court may order that specified property may be disposed of or otherwise dealt with for the purposes of meeting a person’s reasonable legal expenses arising from an application under this Act.

      (3B)    The court may make an order under subsection (3A) despite anything in section 24.

      (3C)    The court may require that a costs assessor certify that legal expenses have been properly incurred before permitting the payment of expenses from the disposal of any property covered by an order under subsection (3A) and may make any further or ancillary orders it considers appropriate.

(3)    Schedule 1, item 5, page 5 (after line 25), after subsection 20A(4), insert:

     (4A)    If the court refuses to make a ^*restraining order under subsection (1), it may make any order as to costs it considers appropriate, including costs on an indemnity basis.

(4)    Schedule 1, item 5, page 5 (line 27), omit “must”, substitute “may”.

(5)    Schedule 1, item 12, page 7 (after line 33), at the end of section 45A, add:

        (4)    If a *restraining order ceases under subsection (1) or (2), the court may, on application by a person with an *interest in the property covered by the restraining order,  make any order as to costs it considers appropriate, including costs on an indemnity basis.

(6)    Schedule 1, item 13, page 8 (line 14), omit “must”, substitute “may”.

(7)    Schedule 1, item 13, page 10 (line 23), omit “must”, substitute “may”.

(8)    Schedule 1, item 13, page 11 (after line 24), after section 179E, insert:

179EA  Refusal to make an order for failure to give undertaking

        (1)    The court may refuse to make a ^*preliminary unexplained wealth order or an ^*unexplained wealth order if the Commonwealth refuses or fails to give the court an appropriate undertaking with respect to the payment of damages or costs, or both, for the making and operation of the order.

        (2)    The ^*DPP may give such an undertaking on behalf of the Commonwealth.

179EB  Costs

                 If the court refuses to make a ^*preliminary unexplained wealth order or an ^*unexplained wealth order, it may make any order as to costs it considers appropriate, including costs on an indemnity basis.

(9)    Schedule 1, item 13, page 17 (after line 18), after section 179S, insert:

179SA  Legal expenses

        (1)    If the court considers that it is appropriate to do so, it may order that the whole, or a specified part, of specified property covered by an order under subsection 179S(1) is not available to satisfy the ^*unexplained wealth order and may instead be disposed of or otherwise dealt with for the purposes of meeting a person’s reasonable legal expenses arising from an application under this Act.

        (2)    The court may require that a costs assessor certify that legal expenses have been properly incurred before permitting the payment of expenses from the disposal of any property covered by an order under subsection (1) and may make any further or ancillary orders it considers appropriate.

(10)  Schedule 1, item 13, page 17 (after line 33), at the end of the Part, add:

Division 5—Oversight

179U  Parliamentary supervision

        (1)    The operation of this Part and section 20A is subject to the oversight of the Parliamentary Joint Committee on the Australian Crime Commission (the Committee).

        (2)    The Committee may require the Australian Crime Commission, the Australian Federal Police, the ^*DPP or any other federal agency or authority that is the recipient of any material disclosed as the result of the operation of this Part to appear before it from time to time to give evidence.

In the time available I will speak quickly to the amendments merely to outline what they are. Before doing so, I will deal with the last point made by Senator Wong, that some of the opposition’s amendments—particularly those providing for the discretionary scheme—are arguably inconsistent with the existing scheme in the proceeds of crime legislation. They are. They provide for greater discretion than is available to courts under the proceeds of crime legislation but, as I indicated in my speech on the second reading, there is a very good reason for that. The proceeds of crime legislation assumes that there has been a conviction and that the purpose of that legislation is to forfeit to the Crown the ill-gotten gains of a person who has been convicted of the crime. This legislation proceeds on the basis that there has not been a conviction of any crime or, indeed, even a prosecution of any crime—merely, that the complainant has a reasonable suspicion as to the matters set out in section 20A of the act. So there is a very important material difference between the two. There is therefore no logical inconsistency between this legislation containing a safeguard in circumstances where the Proceeds of Crime Act contains none.

Let me deal quickly—just for the record—with what the opposition amendments do. I have dealt with the first opposition amendment—that is, the provision for a discretion in relation to the making of a restraining order. Opposition amendments (2) and (9) provide that a court may quarantine assets the subject of an unexplained wealth application in order for the respondent to obtain legal advice. I went to the reasons for those amendments in my speech on the second reading. The regime as initially proposed by the government would permit only legal aid representation if an order left insufficient funds to pay for the lawyer of a respondent’s choice. Unexplained wealth applications, as I said before, differ from proceeds of crime matters generally, as no specific crime needs to be alleged in this case whereas under proceeds of crime legislation it does. Where a person is compelled to explain their financial affairs on pain of forfeiture of their assets, justice demands that they should be able to fund an appropriate and sufficient defence against such a consequence.

Opposition amendments (3) and (5) provide the court with a discretion to make an appropriate costs order, including an order for indemnity costs if an application is unsuccessful. If an application for an unexplained wealth order is fundamentally misconceived or abusive, it is expected that a court will reflect its disapproval of the application with an appropriate costs order. That is a sanction available generally in the civil courts in relation to inappropriate applications. As I said earlier, this legislation—which proceeds by way of analogy with civil injunction proceedings for the arrest and detention of the assets of a defendant—should, in the opposition’s view, also provide for a costs regime equivalent to the costs regime and the capacity for a court in a proper case to order indemnity costs as well.

Finally, opposition amendment (4) provides for the discretion of the court to be instated in the legislation, and opposition amendments (6) and (7) reinstate the court’s discretion on the occasion of an application, inter partes, for a final order. I will leave it at that. There are some other technical amendments as well. I once again thank the government for conceding the points the opposition has raised for the reasons I outlined in the second reading debate. In particular, I thank the Attorney-General and his advisers, some of whom I see in the advisers box, for their consideration of the opposition’s position.