Michael Ronaldson (Victoria, Liberal Party, Minister for Veterans’ Affairs) Share this | Hansard source

On behalf of Senator Brandis, I would like to sum up the debate on this bill. Senator Brandis thanks honourable senators for their contribution to this debate. The Crimes Legislation Amendment (Unexplained Wealth and Other Measures) Bill 2014 reflects the government's continued efforts to provide new tools to courts and law enforcement agencies to confiscate the illicit proceeds associated with serious and organised crime. Senator Brandis would like to thank the Senate Standing Committee on Legal and Constitutional Affairs, which inquired into the bill and its recommendation that the Senate pass the bill. He also thanks the Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills for their examination of the bill.

I would like to go through some of the matters that were raised by honourable senators during the course of this debate. Senator Wright argued against items (3) and (24) of schedule 1 to the bill, which would preserve judicial discretion after accessing restrained funds for legal costs in unexplained wealth matters. The parliamentary joint committee, which is not the government, does not accept these arguments. The Parliamentary Joint Committee on Law Enforcement, the PJCLE, has recommended the unexplained wealth laws be changed to prevent people from using restrained property from meeting their legal expenses under recommendation 10. The PJCLE considered submissions and evidence from a range of community, law enforcement and other government bodies in making this recommendation. Unexplained wealth proceedings are the only type of proceeds of crime proceedings in which people are allowed to use restrained assets in this way. The Proceeds of Crime Act generally prohibits restrained assets being used in this way to prevent the practice of dissipating wealth on legal expenses to frustrate potential proceeds of crime orders.

To ensure that people are not deprived of legal representation, the Proceeds of Crime Act provides a scheme to reimburse Legal Aid Commissions for costs incurred in representing people who are subject to a restraining order. Under the bill people who are not subject to unexplained wealth proceedings may seek legal representation through legal Aid if their unrestrained assets are not sufficient to meet legal costs to ensure that they are appropriately represented and are not disadvantaged. People are still able to use any of their unrestrained assets to pay for legal counsel of their choosing. The courts also have a wide discretion to revoke or refuse orders, such as where it is in the interests of justice to do so.

Senator Wright also made comments in relation to item 3 of schedule 1 of the bill. The government does not accept those arguments. The ability of a person to dispose of restrained property to meet their legal costs weakens the effectiveness of the unexplained wealth provisions, by allowing the wealth suspected to have been unlawfully acquired to be used to contest proceedings. This may lead to fewer assets being available for confiscation if an unexplained wealth order is successful, and is likely to cause more protracted litigation. This amendment will harmonise provisions relating to the payment of legal expenses for unexplained wealth cases with similar provisions relating to other proceedings under the POC Act.

Senator Wright also said that she was opposed to item 24 of schedule 1. Item 24 repeals section 179SA, which relates to the payment of legal expenses, and substitutes new sections 179SA and 179SB, relating to the creation and registration of charges over property subject to a restraining order. Unexplained wealth orders create a civil debt payable to the Commonwealth. As such, an unexplained wealth order does not attach to particular property of a person or require a particular property be forfeited. Other provisions in the Proceeds of Crime Act which create a civil debt payable to the Commonwealth—such as pecuniary penalty orders and literary proceeds orders—allow for the creation and registration of charges over restrained property to secure payment of amounts owing to the Commonwealth. This ensures that property is available to satisfy a pecuniary penalty order or a literary proceeds order if a person does not pay the amount specified in the order. However, the same power does not exist for unexplained wealth orders. Proposed sections 179SA and 179SB will allow charges to be created and registered over restrained property to secure payment of unexplained wealth amounts. This amendment will improve the enforcement of unexplained wealth orders by ensuring that restrained property can be used to satisfy an unexplained wealth order, if a person does not pay an unexplained wealth amount. This amendment implements recommendation 11 of the final report of the Parliamentary Joint Committee on Law Enforcement.

Senator Collins claimed that the bill is identical to a previous bill introduced by Labor in 2012. That bill, which was not passed, would have implemented only six of the recommendations of the Parliamentary Joint Committee on Law Enforcement following its 2012 inquiry into Commonwealth unexplained wealth laws. The government's bill implements two additional recommendations when compared to Labor's 2012 bill. These measures would (1) streamline affidavit requirements in accordance with the committee's recommendation 8, and (2) include a statement on the Proceeds of Crime Act's objectives clause about undermining the profitability of criminal enterprise, in accordance with recommendation 1. This bill also makes technical amendments to improve the operation of the Proceeds of Crime Act.

Senator Wright asserted that the unexplained wealth regime does not require suspicion of an offence and, more broadly, that the bill was fundamentally inconsistent with human rights. In response, the government says this: the unexplained wealth regime provides that if a court is satisfied that there are reasonable grounds to suspect that a person's total wealth exceeds the value of the person's wealth which was lawfully acquired, the court can compel the person to attend court and to prove on the balance of probabilities that their wealth was not derived from one or more offences. The very point of unexplained wealth provisions is to turn the tables on criminals—to require them to demonstrate that their wealth was lawfully acquired. The bill amends the existing unexplained wealth regime, which was carefully crafted within constitutional limits, including ensuring that it did not breach the principles of the separation of powers or the acquisition of property on just terms.

Senator Bilyk noted the bill does not contain new provisions relating to the work of the Australian Crime Commission. The amendments proposed by the PJCLE that relate to the ACC have either been implemented or raise legal issues that require further consideration. PJCLE recommendation 2 proposed the amendment of Commonwealth legislation to allow the ACC board to issue a determination on unexplained wealth, to enable the ACC to use its coercive powers to provide evidence in support of unexplained wealth proceedings. This recommendation was considered, but it was determined that the ACC can already use its coercive powers to investigate matters relating to federal or other relevant criminal activity. Evidence gathered by the ACC is generally available for use in unexplained wealth proceedings. PJCLE recommendations 3 and 4 relate to amendments to clarify the role of the ACC with respect to unexplained wealth proceedings. These recommendations raise legal issues which require further consideration and which the ACC and the Attorney's department are working on to progress. While these issues remain under consideration, the ACC will continue to use its existing powers to assist in POC proceedings.

Unexplained wealth laws are a highly effective weapon in the fight against serious and organised crime. They allow a court, in appropriate circumstances, to order a person to demonstrate that his or her wealth was lawfully acquired. If the person is unable to do so, they may be ordered to forfeit their illegitimate wealth. These laws are vital because they take the profit out of serious and organised crime, and prevent criminal proceeds from being reinvested to support further criminal activity. They also provide an avenue to target the kingpins of criminal groups, many of whom live off the benefits of illegal activities but distance themselves from the actual commission of offences. In March 2012, the Parliamentary Joint Committee on Law Enforcement made recommendations to improve the investigation and litigation of Commonwealth unexplained wealth matters under the Proceeds of Crime Act 2002.

The bill implements eight recommendations of the PJCLE to make the Commonwealth's unexplained wealth laws more effective, including: the streamlining of affidavit requirements; allowing a court to extend the time frame for serving notice; amending legal expense and legal aid provisions for unexplained wealth cases for other POC Act proceedings, so as to prevent restrained assets being used to meet legal expenses; and, finally, removing a court's discretion to make unexplained wealth restraining orders, preliminary unexplained wealth orders and unexplained wealth orders once relevant criteria are satisfied. The bill also makes technical amendments to clarify and streamline processes under the act. These measures are based on the advice of our law enforcement agencies about the best way to ensure that these laws meet their important aims. To balance the expansion of these powers, the bill requires the Commissioner of the Australian Federal Police to report annually to the PJCLE on the number of unexplained wealth investigations and applications. This will strengthen the PJCLE's oversight of the use of the provisions and ensure appropriate checks on the use of unexplained wealth investigative powers.

On behalf of the Attorney, I thank all colleagues across both sides of the chamber for recognising the need for these important reforms to the Commonwealth's proceeds of crime regime. The bill has a direct impact on the ability of our law enforcement agencies to confiscate illicit proceeds and to prevent serious and organised crime. The bill represents an important reform of Commonwealth unexplained wealth laws and a significant step in ensuring that serious and organised crime does not again gain a foothold in this country. I commend this bill to the Senate.

Question agreed to.

Bill read a second time.

Ordered that consideration of this bill be made an order of the day for a later hour.