Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

I want to respond briefly to a few points made by previous speakers. Firstly, the right to a fair trial in this country is an absolutely fundamental cornerstone of our judicial system. The Greens have concerns here that we have articulated at length already that this goes too far. If you want to talk about balance, as a few previous speakers have both yesterday and today in this context, we do not think the balance is right. We believe that, in the rush to seize assets from people who may or may not, by the way, have committed a crime, we are unfortunately making it more likely that in some circumstances Australians will be denied the right to a fair trial, which is a fundamental cornerstone of our judicial system.

It is worth adding that Proceeds of Crime Act proceedings are civil proceedings, not criminal proceedings. So of course the burden of proof is lower in Proceeds of Crime Act proceedings than in criminal proceedings. Proceeds of Crime Act determinations are made on the balance of probabilities, which is a far lower burden of proof than for criminal proceedings, which of course need to be established beyond reasonable doubt for guilt to be found.

In relation to the points made by Senator Collins, I thank her for her contribution and acknowledge that there are other remedies available to courts hearing Proceeds of Crime Act proceedings and that one of those is to hear part or all of those proceedings in closed court. But I would make the point that another fundamental principle of our judicial system is that not only does justice need to be done but justice needs to be seen to be done. In fact, the New South Wales Council for Civil Liberties submission in relation to these matters states that:

… the rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny …

That is the rationale for an open court proceeding. So it is really important that, where possible, court proceedings in this country are open so that they can be subjected to public and professional scrutiny and we can meet the axiom that justice not only needs to be done in this country but needs to be seen to be done.

With those comments, we strongly reiterate our view that the proposed new section 319 which this bill seeks to insert into the Proceeds of Crime Act 2002 is grossly inappropriate and we maintain our opposition to it.