Penny Wright (SA, Australian Greens) Share this | Hansard source

One of the rationales for restricting completely and totally the use of restrained assets for legal defence, which we heard about from Senator Collins as being a reason for the opposition not considering the Greens amendments, is the harmonisation of the approach with the Proceeds of Crimes Act. But I think it is really important to remind everyone that there is a fundamental difference between the Proceeds of Crimes Act and assets that are restrained or seized under that act and unexplained wealth legislation. That fundamental difference is that under the Proceeds of Crimes Act there is a link between a crime, which has been established, and the proceeds of that crime, and then, arguably, everyone would agree to a justifiable restraint or seizure of those assets, which are the proceeds of a crime. With unexplained wealth legislation, where there does not have to be any proof of any crime at all, there merely has to be assets for which a person who is brought to a court is unable to explain where the assets came from.

The Greens amendment is about allowing a court to determine in some circumstances that it is appropriate for the person who is subject to that action to be able to get legal assistance in proving where that unexplained wealth was generated, and then to prove that it was in fact legitimately acquired and not illegitimately acquired. So there is a fundamental difference. The assumption that concerns me is that we are always talking in this case about criminals. That is the fallacious position in a rule of law situation, where we are assuming we have the right person. So we just have to prove it. In fact, what we are talking about here is the ability of a person to be able to defend themselves adequately and fairly so that they have a chance, and, if the assets are indeed legitimately acquired, to be able to establish that.

It is clear, Attorney, that the amendments that the Greens amendments are designed to oppose are amendments that remove any possibility at all in any circumstances that a person could be found to have a legitimate reason to use their restrained assets to defend themselves in court. They are removing that judicial discretion so that there is never a circumstance in which a court can say, 'Weighing everything up, we think it is reasonable to allow this person to use their restrained assets.' What you said in response to the questions from Senator Xenophon is that there have been no assets seized under the current legislation. I am interested to know whether, drawing this back to the Greens amendments, that is because of the exercise of judicial discretion that the government is seeking to remove. Or are there other reasons that the legislation has not been effectively used whereby assets have been restrained?