Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

Organised crime in this country is something all levels of government need to tackle. And one way to do this is to target the unexplained wealth of individuals, especially those who are not directly involved in an act of criminality, to obtain benefits. Criminals who are profiting from other people's crimes will be targeted by authorities who have more ability, now, to seize assets where the size of their wealth cannot be explained.

Organised crime can affect many unsuspecting Australians through many means, which may include bank account data and credit card theft through skimming of cards via ATMs and point-of-sale hubs or online attacks and investment scams.

The previous, Labor government introduced the Crimes Legislation Amendment (Unexplained Wealth and Other Measures) Bill on 28 November in 2012. While it passed the House of Representatives it lapsed in the Senate before the last federal election. Now, the Minister for Justice Michael Keenan has re-introduced this bill, and it looks very similar to the one Labor introduced. In fact, it looks near identical, so I would like to acknowledge the government for supporting the previous, Labor government's bill.

Primarily, the legislation focuses on the various recommendations that the Parliament Joint Committee on Law enforcement brought down in 2012. They include recommendations such as preliminary unexplained wealth affidavits being streamlined; requiring the Australian Federal Police Commissioner to provide the Parliamentary Joint Committee on Law Enforcement with an annual report on unexplained wealth matters and litigation, along with empowering the committee to seek further information from federal agencies; restraining assets from being used to meet legal expenses, and making consistent legal aid provisions; securing payment from restrained property through an unexplained wealth order; including a statement in the objects clause about undermining the profitability of criminal enterprises; removing a court's discretion to make unexplained wealth restraining orders, preliminary unexplained wealth orders and unexplained wealth orders, once relevant criteria are satisfied; extending the time limit for serving notice of applications for certain unexplained wealth orders by a court; and, finally, evidence relevant to unexplained wealth proceedings being seized under a search warrant.

Another measure not in the report but necessary to support the measures already stated includes someone not being able to frustrate an unexplained wealth proceeding by failing to appear, and clarifying orders being made. I am not sure whether many people are aware of the legal aid provisions of unexplained wealth cases but the current process is that suspect assets can be used to go towards a legal defence. This bill closes that gap.

The Parliamentary Joint Committee on Law Enforcement recommended the Commonwealth lead on the development of nationally consistent unexplained wealth regimes. The states and territories are still considering whether to go down that path, with former police commissioners Mick Palmer and Ken Moroney called in to negotiate with the states. To date discussions are still occurring, unless developments have occurred more recently.

Chris Hayes, the member for Fowler, who has contributed greatly to this bill through his involvement on the Parliamentary Joint Committee on Law Enforcement, made what I thought was a very good statement which summed up the whole reason for this bill. He said:

… for every crime, there is a victim of crime. Therefore, if you prevent a crime or deter the commissioning of a crime, there is one less victim.

I couldn't agree more. Labor has supported and will continue to support the laws which take the incentive out of organised crime. Thus, Labor will be supporting this legislation, as it basically mirrors the legislation we introduced in 2012. Before I complete my contribution, I want to compliment our federal, state and territory police forces around the country. They all work in a very difficult space and do a very good job in protecting us.

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

I rise to speak about the Crimes Legislation Amendment (Unexplained Wealth and Other Measures) Bill 2014. In particular, today I want to speak about the aspects of this bill that entrench the inequality of arms, undermine the presumption of innocence and therefore offend the rule of law. Like every other senator in this place, I am repulsed by the idea of criminals benefiting from the proceeds of their crimes. Australia must and does already have an extensive proceeds of crime regime in place to ensure that those who break the law do not profit from their crimes. But let's be very clear about what the existing law already allows.

Under existing law, a person who may not even be suspected of engaging in a criminal offence can be required to front up to a court and prove that his or her home, car or other assets have been legally obtained. There is no requirement for the police to show that there is a link between the asset and the commission of any specific criminal offence. Even if the asset was legally obtained, the person will lose it unless they can provide sufficient proof that it was lawfully acquired.

But this bill seeks to extend this regime into a new frontier of unfairness, where those who are required to prove to a court that their assets were legally obtained would be denied access to the type of legal representation that they want and need. Currently, where a person's assets are restrained in an action like this, a judge hearing the matter has the discretion to allow the person to use their assets to pay for their legal defence. But this bill will remove that discretion totally.

The feature of this bill that raises particular concerns for the Australian Greens, and for many legal experts who have made submissions in relation to these amendments over consecutive parliamentary inquiries, is the removal of this discretion. Many of these concerns are also shared by the Parliamentary Joint Committee on Human Rights. These concerns arise both from the practical implications of them but also principle.

As a starting point, the amendments proposed in the bill are completely unnecessary. There has been no case made for these amendments. The court can already refuse to allow a person to use their assets for the purpose of obtaining legal advice where they have been issued with an unexplained wealth order if the court is concerned, for instance, that the real purpose is to dissipate the assets so they cannot be seized by the state, by the government.

There is no evidence in the explanatory memorandum that the existence of this discretion as it currently stands has been misused or has jeopardised the outcome of unexplained wealth proceedings. There is no evidence in the explanatory memorandum—the memorandum which is designed to explain the rationale for the legislation we are being asked to agree to. The government has given no compelling reasons to justify taking this discretion away from the party which is best placed to make this call: the court. As is usually the case, it is the judge, the court, who is privy to the information and the evidence and can assess the merits of the person's application—in this case, to use their assets to obtain legal advice and representation.

Then there are the principle issues. In the situation where a person is being subjected to a very significant action by government to remove their assets, this bill will force parties to look to legal aid for assistance. This will compound existing pressure on legal aid services in an environment in which the legal assistance sector is already notoriously overloaded. Victoria Legal Aid's submission to the Senate inquiry into this bill, for instance, made it clear that diverting people who want to contest unexplained wealth proceedings into the legal aid scheme will see an increase in applications for funding for complex and protracted litigation, which would require sizeable payments to legal representatives and forensic experts, if indeed their defence is to be done properly.

In our society, under the rule of law, people are entitled to mount an appropriate defence to actions by government like this. This is a serious concern. There is clear evidence of already significant existing levels of unmet need in the legal assistance sector. They are in our newspapers. They are in our faces every day. This means that people are already prevented from getting the legal assistance they need. Increasingly, it is not just the poorest Australians but also middle Australians as well. It is having damaging consequences, both for individuals and also for the structure of our legal system, the basis on which our legal system has been established. For instance, there has been a huge increase in self-represented litigants in litigation generally but particularly in the Family Court, which means people are unable to get the legal advice and representation they need. They are being forced to try and run complex cases on their own. This is the existing situation, without the change that is mooted in this bill.

There is also doubt as to the capacity of any legal aid grant to meet the costs that would be sustained in an unexplained wealth matter. As discussed in the Law Council of Australia's submission to the Senate inquiry into this bill, there is generally a need for specialist commercial expertise in responding to unexplained wealth orders. That does not come cheap, and there are often restrictions on using legal aid funding to obtain expert reports.

They are the practical implications. I said they were the matters of principle but in fact they are the practical implications of the provisions in this bill. But there are also really important matters of principle if we are going to be living in a country that is subject to the rule of law. Fairness and the rule of law require people to have adequate legal representation and the ability to defend themselves in legal proceedings, especially when they have not been charged with or convicted of a criminal offence. This is known as the equality-of-arms principle. It is colloquially expressed in a term we are all familiar with—the right to a fair go. The idea of a right to a fair go is an Australian principle and an Australian ethic.

In direct contrast to this principle, this bill forces those who face an unexplained wealth order to rely upon legal aid in order to be able to obtain legal representation. They might have means available to them but they will be forced to rely on legal aid. It will mean that a person who is required by law to explain to a court how his or her house or car was lawfully obtained has to join the end of a very long legal aid queue while the government instructs the best legal and financial experts that money can buy.

The government's recent announcement of $11 million of extra funding for litigation specialists tasked with conducting confiscation proceedings and forensic accountants in cases such as this makes it abundantly clear that that the inequality of arms is likely to be on a monumental scale. This gives rise to the real risk that innocent people who have failed to keep receipts or records may lose their lawfully acquired assets. It is totally unacceptable in Australia in 2015.

For these reasons, the Australian Greens recommend that items (3) and (24) of the bill be removed. This will preserve the existing judicial discretion about accessing restrained funds for legal costs and protect Australia's legal resources such as in the legal assistance sector without impacting on legitimate aims of Australia's proceeds-of-crime regime. It will mean that it is judges and courts that are best positioned to understand the risk of someone not being able to adequately represent and defend themselves in the face of these sorts of proceedings that make that call. The Australian Greens will be seeking to amend the bill in line with these recommendations in the committee stage.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I support the bill as presented and oppose the amendments. I will not go into the provisions of the bill as Senator Collins has already done so in her contribution to the debate. I acknowledge that this is a bill that was proposed by the previous government and referred to the Parliamentary Joint Committee on Law Enforcement, which handed down a final report on its inquiry. The government of the day accepted 15 of the committee's 18 recommendations, indicating that organised crime is motivated by the huge profits that can be made through illegal activity. The government said that it was:

… committed to ensuring that it has strong laws to target the criminal economy; not only removing the proceeds of crime, but also preventing its reinvestment into further criminal activity.

I note in passing that the Greens political party indicated their general support for that recommendation back in 2012, so I am somewhat surprised that they now have amendments.

I will not deal with the bill as such, as I said, because Senator Collins and also the minister in his second reading speech adequately dealt with it. I just want to briefly respond to the Greens' comments regarding their amendments. What the AFP and others are concerned about is that these proceeds of crime may, under the current law, be used to mount a legal case. As those of us who have any connection with the law know, you can run legal cases ad infinitum and use most of the wealth that was got from illegal activities in fighting cases.

The Greens said in their speech that it is difficult for people to prove that their house or car was legally obtained. I think when most Australians buy a house they go to the bank and get a mortgage. There is never much doubt about where the proceeds have come from. I accept that in a very high-profile allegation about a former Prime Minister there was some doubt about where the money came from to purchase a house in Melbourne but, that aside, most Australians can clearly indicate that they bought their house or their car through a loan from a bank. Those records are readily available. It is only criminals, who are often very well advised by top-flight accountants and lawyers, who can mix up the money so that it is sometimes difficult to follow the trail of where it has come from. Whilst I hear what the Greens are saying about their amendments, I can say that for 99.9 per cent of Australians there is not much trouble in showing where we all got our money from to buy our houses or cars.

The Senate Legal and Constitutional Affairs Legislation Committee looked at this bill with some intensity. To a degree we were persuaded by the work of the joint committee on the same bill a couple of years previously, but we did seek submissions and we did conduct an inquiry.

I note that the Legal Aid Commission of Victoria was concerned, as are the Greens in their speech, that if people could not use the value of the assets in question to mount their legal defence, they might have to go to legal aid. I can understand the Victorian Legal Aid Commission being concerned about extra access to their very limited funds for these types of issues. As the Australian Federal Police pointed out, if the Legal Aid Commission does provide funds and it is found that the assets were legally obtained, then the assets stay with the person accused and that person then—with the benefit of those assets—can repay the Legal Aid Commission. In those instances, I do not think it is going to have a big impact on legal aid. Furthermore, the AFP said in evidence that they were :

… not expecting a huge volume of unexplained wealth cases.

And, further:

… if a person does need to resort to legal aid there are ways for them to do that and for the legal aid commission to recoup those costs.

That is, in the way I have just mentioned.

I do acknowledge the concerns of the Law Council of Australia, who did give evidence and did assist the committee with their work. I would point out—and perhaps I will not read it in full—page 29, clause 2.29 of the Senate Legal and Constitutional Affairs Legislation Committee's report, where the AFP explain that the current safeguards, which the Greens are saying are sufficient, were unlikely to 'operate as a concrete safeguard'. They go on in the passage quoted in the committee report to explain that:

The AFP added that the existing provisions, which provide for a person to access restrained assets for the purpose of legal expenses, have been found to be the 'type of provision [that] undermined the entire object of the act because ... people would rather spend their money on their lawyers than see the money going to be confiscated by law enforcement'.

In a lot of these issues, whilst they are matters for parliament to determine, clearly you have to take notice of the people at the cold face and the people who are there trying to protect Australians from crime—organised crime in particular—and the unexplained wealth that sometimes comes from organised criminal activities. The AFP and other law enforcement agencies obviously were the ones who approached the government of the day for the amendments to these bills to make it easier for them to fight crime and to protect all of us from the activities of organised crime.

I will not delay the Senate further. Suffice to say, for the reasons contained in the Senate committee's report and those enunciated by Senator Collins as well, I support the bill and oppose the amendments proposed by the Greens.

Catryna Bilyk (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

As we all know, organised crime can be a very profitable business; because if it was not, obviously criminals would not bother being involved with it. As many of us know, when the notorious gangster Al Capone was finally convicted of a major crime, it was not for murder, kidnapping or extortion: it was for tax evasion. That is because, while it can be very profitable to earn money via criminal activities, it becomes extremely difficult to hide large sums of money obtained through illegal means. It has a habit of being splashed around, because what is the point of earning large amounts of money by criminal dealings if not to live the high life? By following the money trail, as it were, it becomes possible to find the more substantive crimes which created the wealth in the first place. It becomes possible to connect the kingpins of organised crime to their underlings that actually commit the crimes on their behalf and at their direction.

Labor supports this bill, because it builds on the actions of the Labor Party when in government. It was the Labor Party that enacted the Commonwealth unexplained wealth laws that have been in place since 2010 and this bill enhances these laws. It was Labor that first acted on this issue, and I am glad that this government has followed our lead. The bill amends the Proceeds of Crime Act to strengthen the Commonwealth's unexplained wealth regime and improve the investigation and litigation of unexplained wealth matters.

Organised crime is serious business in Australia. According to the Crime Commission's Organised crime in Australia 2013 report, they conservatively estimate organised crime to currently cost Australia $15 billion annually. That is an extraordinarily large amount of money and a substantial drain on our society. But organised crime in Australia is not an issue that just affects Australians; it is inextricably linked to international organised crime. Serious and organised criminals operating in Australia necessarily have international links to facilitate their activities—particularly the movement of illicit goods into Australia—and overseas-based organised criminals actively target Australia.

As a relatively wealthy nation, we make a good target for overseas based cybercrimes. We have also seen the rise of online trading sites, like the now defunct Silk Road, which have made it easier for organise criminals to sell illegal and harmful products to Australians without ever stepping onto Australian soil. This means that strong and trusted partnerships with overseas law enforcement agencies are now more fundamental to combating organised crime than they have ever been.

The history of international action was outlined in the Parliamentary Joint Committee on Law Enforcement's report on the inquiry into Commonwealth unexplained wealth legislation and arrangements. They said in that:

The importance of serious and organised crime had already been recognised internationally, with a 1997 Interpol resolution recommending that member countries consider adopting effective laws, that give law enforcement officials the powers they need to combat money laundering both domestically and internationally, including reversing the burden of proof (using the concept of reverse onus) in respect of the confiscation of alleged proceeds of crime.

The idea of confiscation of unexplained wealth in international agreements can be traced back as far as the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988).

We are debating this issue in this place today because the issue of organised crime is becoming more prevalent and is having a wider impact on Australians. As the Crime Commission said:

Once, encounters with organised crime were largely restricted to those who sought out illicit commodities or illegal activities. Today, any Australian on any day can be …

affected by organised crime.

It might not be entirely obvious how Australians can be affected by organised crime, so I will take a quick moment to outline some of the ways that everyday, ordinary Australians can be affected by organised crime. These ways include being defrauded in investment scams, the use of dangerous and volatile clandestine laboratories to produce drugs in suburban areas, the theft of credit card and bank account data through online attacks, or by means of skimming, and the violence between organised crime groups that takes place in public.

As the former Chair of the Joint Select Committee on Cyber-Safety I heard stories time and time again of people, particularly senior Australians, losing thousands of dollars, even hundreds of thousands of dollars, through online fraud perpetrated by organised criminals. Hundreds of thousands dollars have been lost through fake emails phishing for information. I remember during a hearing of the Joint Select Committee on Cyber-Safety in Sydney the Australian Taxation Office showing me two emails purporting to be from the ATO. The first was a year old and was a relatively crude affair, but the second email, a year later, looked extremely professional, with the correct ATO logo, and was very difficult even for tax office officials to identify that it was a fake. The email claimed that the recipient was eligible for a small refund from the ATO. It was not a large figure; generally they are quite small. But when you add all these small amounts together you see that these people are making a substantial amount of money out of their crimes. When the victim clicked on the link they were sent to a website with an almost identical address to the ATO, which was a clone of the ATO site. These criminals are very smart and very clever. I do not think it is very smart or clever of anyone in this parliament to underestimate how much people are getting out of this sort of crime. Organised crime is getting larger and more sophisticated. It involves activities that can every single one of us. Organised criminals are using other sorts of crime, including human trafficking, but today we are talking about wealth.

We support this bill, so I will not take up too much more time. I will say that Labor started the process of this bill when we were in government. Despite assurances they would retain proceeds seized under their own laws the states and territories have consistently rejected this proposal. In June 2013, former police commissioners Mick Palmer and Ken Moroney were appointed by then minister, Jason Clare, to negotiate with jurisdictions and 'break the deadlock'. Unfortunately, that is yet to be achieved. It was reported in October 2013 that Mr Palmer and Mr Moroney were due to report to government 'within weeks'. However, we are not sure if this occurred or, if it did, what their report contained. It would be nice of the government to inform this place and the other place about the outcome of these negotiations.

Labor's Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 passed through the House of Representatives in February 2013 but lapsed in the Senate at the end of the last parliament. The bill we are debating today, the Crimes Legislation Amendment (Unexplained Wealth and Other Measures) Bill 2014 is fundamentally the same as the lapsed legislation and implements Labor's commitments of February 2013 in the government's response to the Parliamentary Joint Committee on Law Enforcement inquiry into Commonwealth unexplained wealth legislation and arrangements. The bill implements eight out of 18 recommendations handed down in the Parliamentary Joint Committee on Law Enforcement inquiry into Commonwealth unexplained legislation and arrangements.

Minister Keenan, in opposition, made remarks about Labor not embracing the recommendations of the committee which involved the Australian Crime Commission pursuing unexplained wealth orders. In government, however, Minister Keenan has unfortunately failed to keep faith with his rhetoric in opposition. Once again, the coalition have said one thing in opposition and have done the opposite in government. The bill does not contain new provisions concerning the work of the ACC; it is just to continue on.

We support this bill. I am pleased that the government have finally come to the fore in supporting this bill that was begun when we were in government. I commend the bill to the Senate.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I rise today to object to passage of the Crimes Legislation (Unexplained Wealth and Other Measures) Bill. I am sure everyone in this place would be horrified if a neighbour simply took their car and sold it to pay a debt. They would likely be even more annoyed if it was later shown that the neighbour was in the wrong and there was no debt owing at all. But that is what this bill allows the government to do. I am always especially concerned whenever the government gets to do something obviously bad, simply because it is the government. Perhaps it is possible that people in this place do not appreciate what is being waved through the chamber today, so I will explain.

Unexplained wealth regimes—Australia has one in every state and territory, as well as the Commonwealth version I am discussing now—allow the state to confiscate an individual's assets without proof of guilt. They are not to be confused with proceeds of crime legislation, which only come into play once a conviction has been secured. What sort of assets? It is merely wealth that you can't explain, wealth that is inconsistent with your tax records or that appears to have been obtained in a year when you filed no tax return. Wealth that is not obvious on an examination of tax records is actually deemed to be unexplained. People must go to court and prove that on the balance of probabilities they acquired it legitimately. However, it is rather difficult to go to court when your property has been taken from you, and you are not allowed to use it to defray your legal costs. The legislation refers to it as 'restrained property'.

You therefore have no money and must apply for legal aid in order to defend yourself against the government. In fact, you must not only defend yourself, but you must also prove that the money now held by the state is legitimately your own. But legal aid mainly deals with criminal and family matters. A legal aid lawyer is paid roughly $150 an hour. Unexplained wealth situations are different and far more complex. For a start, there is no crime, which means a criminal lawyer is of little use. Much of the relevant law in cases like this concerns taxation and corporate matters. Commercial lawyers are much more expensive than criminal lawyers; they cost between $350 and $400 an hour and very few do legal aid work. And because it is not possible to pay for a lawyer out of 'restrained property', the action becomes almost impossible to defend. At this point, many people simply give up and let the government keep their money.

Of course, you may be a bad person. You may be a drug kingpin. You may—thanks to the offensively high excise on cigarettes—be growing a bit of illicit tobacco on the side. There used to be a rule that the state had to prove you were a bad person before it could send you to jail or take your property. That was a good rule. In fact, it used to be our rule, derived from clause 39 of Magna Carta:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

Thanks to bills like this one, that rule has been abrogated. The explanatory memorandum could not be clearer:

Under Commonwealth unexplained wealth legislation, 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 that was lawfully acquired, the court can compel the person to attend court and prove, on the balance of probabilities, that their wealth was not derived from one or more relevant offences. If a person cannot demonstrate this, the court may order them to pay to the Commonwealth the difference between their total wealth and their legitimate wealth.

So then, what makes this bill even more obnoxious than the confiscatory legislation it seeks to amend? Once again, I turn to the explanatory memorandum:

Courts hearing unexplained wealth matters currently have a general discretion to decline to make a restraining order, preliminary unexplained wealth order or final unexplained wealth order, even if all relevant criteria for making the orders have been satisfied. The Bill will remove this discretion and will require courts to make [those orders] once satisfied that the criteria for making them have been met.

That bit of airy legalese means that the judge's role is reduced to a box-ticking exercise. The judge cannot act independently—as the third arm of government, the judicial arm—to defend one of our most basic common law rights: the presumption of innocence. His judicial discretion has been swept away.

Indeed, when the New South Wales equivalent of the law before us today was litigated last year, the High Court, more in sorrow than in anger, had to concede that 'the principle of legality'—a rule of statutory interpretation that requires parliament to use clear language if it intends to restrict fundamental rights or depart from general principles of law—had genuinely been invoked. The New South Wales parliament intended—with a degree of clarity that is difficult to credit—to abrogate a fundamental common law right. This bill seeks to do exactly the same thing.

The bill represents a gross expansion of police power, and, as I have often noticed, a policeman never seems to see a power he does not like. It allows the government to steal our money, overturns the presumption of innocence, reverses the onus of proof and prevents the courts from protecting our rights. It ought to be condemned and not passed.

Michael Ronaldson (Victoria, Liberal Party, Minister for Veterans’ Affairs) Share this | Link to 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.