Stephen Parry (Tasmania, Liberal Party) Share this | Hansard source

I rise on behalf of the Parliamentary Joint Committee on Law Enforcement to present the report of the committee on Commonwealth unexplained wealth legislation and arrangements, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

Unfortunately, this is the second tranche in relation to the unexplained wealth legislation as the provisions that resulted from the bill's passage through the parliament have not proved to be workable in over two years of operation. So, to that effect, the committee has further examined the reasons why and widely consulted again in relation to unexplained criminal wealth assets. The consultation culminated with a meeting of all the state and territory police commissioners as well as the Australian Federal Police where we had a very frank and fruitful discussion. The aim now is to put some technical amendments through and make sure that the unexplained wealth legislation provisions are actually workable and police agencies can use them.

The primary purpose—and I have spoken about this on previous occasions—of unexplained wealth legislation is that, where we cannot prosecute serious criminal organisations because of lack of evidence due to the intricate and technical ways that serious criminal organisations and crime gangs avoid prosecution or detection, we aim to subvert that avoidance by simply going to the wealth, the assets, of the individuals who control and run or who are involved with these serious criminal organisation outfits. In other places in the world, this has proved to be very effective, and I quote the example of Ireland.

We took some evidence about the Irish model. In fact, some Irish officers attended this parliament and spoke to the committee at great length. When they implemented their unexplained wealth legislation they started to remove assets from criminals when they could not explain how they attained those assets and it was asserted those assets were gained unlawfully. Three crime families, if you like, left Ireland. So if we can have that same effect here, in Australia, that would be fantastic. A key aspect of this is to get harmonisation with the states. We do not want one state to be the weakest link and, therefore, have criminal organisations maybe relocating or associating themselves with the states that do not have the same provisions. So, to this end, the committee will work very hard with the Attorney-General's Department and other state and territory jurisdictions to ensure that there is harmonisation throughout the Commonwealth.

I am aware that there are other reports that need to be tabled this evening. There is a reasonable list. So I seek leave to incorporate the remainder of my tabling statement into Hansard.

Leave granted.

The statement read as follows—

Parliamentary Joint Committee of Law Enforcement

Tabling of the unexplained wealth report

Mr Speaker [President], I rise to present the Parliamentary Joint Committee on Law Enforcement's report for its inquiry into unexplained wealth legislation and arrangements.

Unexplained wealth laws represent a relatively new form of criminal assets confiscation, whereby serious and organised criminals who cannot account for the wealth they hold may be liable for forfeiture of those assets to the state.

The value of unexplained wealth provisions lays in their ability to significantly undermine the business model of serious and organised crime. The incentive behind organised crime is to make money. By removing unexplained wealth from serious and organised criminal networks and associated individuals, this incentive is removed.

Furthermore, confiscation of criminal profits removes funds that are used as capital for thither criminal enterprise. Removing these funds significantly disrupts the ability of criminal networks to operate.

The committee was therefore pleased to see the introduction of unexplained wealth provisions into Commonwealth proceeds of crime legislation in early 2010.

Unfortunately, the provisions that resulted from the Bill's passage through Parliament have not proved to be workable in over two years of operation. To date, no unexplained wealth proceedings have been brought before the courts due to a range of limitations.

The committee was therefore keen to examine these provisions more closely, and has made a number of significant recommendations in this report that will significantly enhance the effectiveness of the Commonwealth unexplained wealth provisions.

In particular, the committee has recommended major reform of the way unexplained wealth is dealt with in Australia as part of a harmonisation of Commonwealth, state and territory laws. While complementing the national strategic approach to organised crime, harmonisation may also allow the Commonwealth to make use of unexplained wealth provisions that are not linked to a predicate offence. This approach has been found to be the most effective, both in Australia and abroad.

The committee has therefore proposed that the Commonwealth seek a referral of powers from willing states and territories as part of a long term plan to develop a nationally consistent approach to unexplained wealth and organised crime. Harmonisation would also help to eliminate gaps that can be exploited between jurisdictions.

In addition, the committee has recommended a series of technical amendments that would ensure that unexplained wealth proceedings are efficient and fair, correcting deficiencies that were identified during the course of this inquiry.

Effective unexplained wealth legislation can take the profit out of criminal enterprise, undermining the business model of serious and organised criminal networks and protecting His, community from the damage caused by these individuals and organisations commend this report and its recommendations, and urge the government to ensure that crime doesn't pay.

The committee has a longstanding interest in securing effective unexplained wealth legislation, arising from the committee's study of international models to tackle organised crime during an overseas delegation in 2009. The committee heard from a number of jurisdictions that, while serious criminals may consider imprisonment to be an acceptable occupational hazard, taking their illicit profits was considered to be a far more serious blow.

Serious and organised crime, motivated by greed, power and money, has serious impacts, threatening the economy, national security and the wellbeing of Australians. The financial cost to the community is conservatively estimated to be around $15 billion a year.

As the Australian Crime Commission informed the committee, while serious and organised criminal groups continue to prove resilient and adaptable to legislative amendment and law enforcement intelligence and investigative methodologies, the reduction or removal of their proceeds of crime is likely to represent a significant deterrent and disruption to their activities.

Unexplained wealth legislation represents a new form of law enforcement. Where traditional policing has focussed on securing prosecutions, unexplained wealth provisions contribute to a growing body of measures aimed at prevention and disruption. In particular, unexplained wealth provisions fill an existing gap which has been exploited, where the heads of criminal networks remain insulated from the commission of offences, enjoying their ill-gotten gains.

The committee considered evidence regarding the requirement to link a Commonwealth scheme to a Commonwealth head of power, necessitating the inclusion of a link to a federally relevant offence. This is a significant limitation, as it undermines the most valuable aspect of unexplained wealth provisions — that they provide a means to target the heads of criminal networks who are often insulated from committing, or being implicated in the commission of offences themselves. Unfortunately, crime doesn't respect geographical boundaries or Constitutional restraints.

Summary of recommendations:

Given the intrusive nature of unexplained wealth provisions, the committee has sought to provide greater clarity and accountability for the use of the provisions. This includes:

Further support for unexplained wealth investigations in the form of:

Improving the operation of taskforces which involve the Tax Office through:

Streamlining the court process through:

Development of a consistent and effective national approach to unexplained wealth across Australia, through: