Slade Brockman (WA, Liberal Party) Share this | Hansard source

I rise to speak on the Unexplained Wealth Legislation Amendment Bill 2018. I will address some of the issues raised by my colleagues in the Senate a bit later on in my contribution. The last 30 years has seen worldwide review of legal frameworks and approaches to addressing the issue of unexplained criminal wealth. In recent years, several governments have considered unexplained wealth laws and tools to enhance domestic efforts to tackle this issue; namely, to confiscate and forfeit wealth from individuals involved in illegal activities. Depriving criminals of their wealth is a key measure in combatting crime and is crucial in striking at the heart of organised crime.

The Australian Criminal Intelligence Commission estimates that the cost of crime in Australia is at least $36 billion per year. Unexplained wealth laws provide a valuable tool for law enforcement to confiscate the assets of criminals where they cannot demonstrate that this wealth has been lawfully obtained. We strongly believe it will deter would-be criminals by reducing the profitability of illegal activities. It may also prevent crime by diminishing offenders' ability to finance future criminal action.

Unexplained wealth laws are currently in place in the Northern Territory and Western Australia. I'll run through the current situation in Western Australia. It was in fact the first Australian jurisdiction to introduce unexplained wealth laws with the Criminal Property Confiscation Act 2000. This act was aimed at people who apparently live beyond their legitimate means of support. The legislation in Western Australia sets out the following processes whereby law enforcement and prosecutors can obtain information about criminally purchased assets. The Director of Public Prosecutions or police may require a financial institution to provide information about the transactions or the assets of a particular person. The DPP can apply to the courts for an order allowing them to conduct an examination of a suspected individual, which can require a person to furnish the court with information and documents. The DPP can also obtain documents relating to assets or property by applying for a production order. The DPP can apply to the court for orders requiring a financial institution to monitor or suspend a person's account and provide that information to the police or DPP. The police can detain a person if they have reasonable suspicion that the person has in their possession property liable to forfeiture or documents identifying or determining the value of a person's unexplained wealth. There are also provisions to ensure property remains available for forfeiture. In particular, the police have the power to seize property if they reasonably believe it was derived from or used in a crime and both the police and the DPP have the power to apply to the court for a restraining or freezing order which prevents property or assets from being used for a period of time.

As Senator McKim and Senator Leyonhjelm have raised, this area of law does raise a series of questions that we do need to confront. Laws such as these must always strike a balance, and unexplained wealth legislation cannot be drafted without considering its potential impacts. Such laws can have the potential to infringe people's rights to silence and the presumption of innocence. It could also be argued that a court's ability to determine a person's total wealth as being greater than their lawfully acquired wealth is problematic.

Whilst the government certainly acknowledges these concerns, this bill does represent an innovative legal tool and one that will become increasingly significant in the fight against illegally derived wealth and criminal activity. The scale and complexity of the criminal threat has necessitated an enhanced focus on cooperative, cross-jurisdictional responses by Australian governments. This is not just an issue of my home state of Western Australia; it is something that concerns the Northern Territory, South Australia and every other state. The bill creates a national cooperative approach, one that enables participating jurisdictions to work together to effectively remove one of the principle incentives of criminal activity—the accumulation of wealth—irrespective of the jurisdictions in which they operate.

One of the key features of this national scheme is it expands the Commonwealth regime. The bill allows the AFP to seize unexplained wealth where there is a connection to a broader range of state and territory offences. This will allow a single unexplained wealth order to target a national criminal syndicate, for example, instead of a patchwork of orders that would be sought by Commonwealth, state and territory authorities. It provides information-gathering powers. Law enforcement agencies in participating jurisdictions can apply for production orders or issue notices to financial institutions. These compel the production of information or documents to unexplained wealth investigators. It allows for the use of intercepted information. Officers in participating jurisdictions can use lawfully intercepted telecommunications information in unexplained wealth matters. In participating jurisdictions which contribute to the seizure of property or related criminal matters, they will generally receive an equal share of seized assets under the new equitable sharing arrangements, incentivising national cooperation.

The operation of the state and territory regimes has been preserved and, under the proposed intergovernmental agreement, jurisdictions must inform one another of operations or legislative changes that may impact in other jurisdictions. The scheme will be reviewed after four years. An important point and one that was raised by Senator Leyonhjelm is that the Western Australian parliament is currently reviewing its unexplained wealth legislation. It is important, when you are dealing with issues that do potentially infringe on the right to privacy and the right not to face a prosecution in this way, that these laws are regularly reviewed and considered for the impact they're having, how often they're being used and the types of cases they're being used on. That's why the government has included a four-year review of this legislation: to see how it is working, to see it's achieving its desired outcome and to make sure it is not overstepping the mark and infringing liberties in a way the government would not support. I think it is very important that we take that into account when considering this legislation.

Now, a national scheme, obviously, must always consider who is going to be a part of it. Obviously, we would like all states to be involved over time. New South Wales introduced legislation to refer powers to the Commonwealth. That was passed on 6 June 2018. The Australian Capital Territory and the Northern Territory are, of course, automatically bound by the scheme on passage of the bill. Being territories, no referral is required. Negotiations with the other states are ongoing. Given that at least Western Australia is undertaking a review, I imagine the negotiations will be taken in light of the findings of that review, and that's completely understandable. It is important that states come to this from a position of understanding what the national regime will involve and how it will potentially impact on their home states.

So why are we implementing a national scheme before all the states have bought in? This is a complex process. When you've got a number of jurisdictions involved, obviously there are a large number of stakeholders involved, particularly from the legal fraternity, but also stakeholders in other areas of society. It is a complex negotiation and one that will clearly take a significant amount of time. In fact, negotiations have been ongoing since 2014. We don't want to hold anyone back. Obviously, New South Wales is keen to be an initiator of the scheme. We certainly want to move forward with the potential for a national scheme, even though only New South Wales and the territories will be involved at the start.

The bill, along with the New South Wales legislation, will allow New South Wales, the Northern Territory, the Australian Capital Territory and the Commonwealth to all be part of the scheme immediately and realise some of its benefits. Discussions with the other states will be ongoing, and I expect over time, as they see the scheme in place, they will talk to the Commonwealth about how they can become involved in the national framework.

As part of this bill, states will be allowed to determine the offences to be referred. This ensures that states can refer offences in a way that is consistent with the unexplained wealth powers within each state. New South Wales unexplained wealth orders can only be sought where a property or person can be linked to a particular serious offence. New South Wales referrals have been limited to these serious offences to ensure the Commonwealth does not have greater power over New South Wales offences than would exist within the New South Wales unexplained wealth regime. Every offence added by the states extends the scope of the Commonwealth unexplained wealth orders and increases their effectiveness in addressing interjurisdictional criminal conduct.

This scheme, the bill currently under debate, was an election commitment of the coalition in 2013. The passage of this bill, assuming it receives support from this place, will mark the achievement of an election commitment. It implements key recommendations of the February 2014 independent report by the panel on unexplained wealth. I would also note that the final report of the National Ice Taskforce, which was endorsed by COAG, and the National Ice Action Strategy in 2015 also recommended a national scheme like the one we are debating today. The then Labor government, in February 2013, also agreed to seek referral powers from the states and territories, again for the purpose of legislating what this bill seeks: a national unexplained wealth scheme. That was in response to a 2012, I believe, Parliamentary Joint Committee on Law Enforcement inquiry into this matter, so you can see this is not something that was knocked up last week. It's something that's had a very long gestation; it's something that had been talked about, in the case of Western Australia, prior to 2000. In the national context, it's been talked about since around 2012. So, we have a situation where it's had an extraordinary amount of ventilation. It's had a lot of consideration, and you have seen a lot of input into what is a very complex area and one that does require a significant amount of work to make sure we get the balance right.

Again, I'll just return to some of the benefits of the bill that is currently before us. Serious and organised crime syndicates are operating in an increasingly fluid manner across jurisdictional borders, and that's not only within Australia, nationally, but also over international borders. Our national law enforcement efforts are increasingly frustrated by this fluidity. The Australian Federal Police said in its submission to the 2006 independent Sherman review:

Current criminal investigations can often be frustrated through lack of evidence against people with significant wealth and no apparent source of legitimate income.

Having distinct levels of unexplained wealth will ensure a targeted approach to combatting a specific crime. The Parliamentary Joint Committee on the Australian Crime Commission report in 2009 concluded:

… unexplained wealth laws appear to offer significant benefits over other legislative means of combating serious and organised crime…

The benefits of these laws include:

Before I conclude, I want to point out that, when considering these laws, we need to look at how often they are being used. In the first decade of use of the Western Australia unexplained wealth laws they were used 24 times. These are laws that are relatively rarely used in the context of inquiring into unexplained wealth. So it's not that the floodgates are suddenly going to be opened to the kinds of examples that Senator Leyonhjelm gave: people who have inherited wealth or gained wealth through a particular relationship that they don't want revealed. These laws are used relatively infrequently and they are clearly targeting criminal activity.

Again, what we're trying to do here is deter those who contemplate criminal activity by reducing the possibility that they gain or keep any profit from that activity. Obviously, the motive for a quick buck is a significant motivating factor in criminal enterprise and anything we can do, as a society, to reduce that temptation obviously makes society safer. It prevents crime by diminishing the capacity of offenders to finance future illegal activity. Again, this is very important. If we can, in any way, reduce the amount that criminal syndicates have to reinvest in criminal activity, that will improve the situation for all in society. It also prevents the unjust enrichment of criminals, whose profit is always at the expense of society.

So, this is a very important, powerful and effective tool in the fight against crime generally, and particularly in the fight against organised crime. It will play a significant deterrent role. It has been developed over a long period of time with consultation from the states and territories, from law enforcement agencies and from the legal profession. The government remains committed to working collaboratively with all governments across Australia to make sure that we strengthen, target and actively fight against the accumulation of illicit wealth and organised crime, and we do so with a very strong mind to make sure we maintain the rule of law, the basis of protection of privacy and the individual right to property that those on this side do hold very dear. So, I commend the bill to the chamber.