A Senate committee has
just given the Turnbull government the green light to nationalise a scheme that
allows government to seize citizens’ assets unless their legitimate origins can
be explained, even if the owner of the wealth hasn’t been charged with let
alone convicted of an offence.
Unexplained wealth laws
currently exist in every Australian jurisdiction, but the new scheme provides a
broader model allowing for federal and state authorities to work in
collaboration across jurisdictional borders to target serious and organised
crime.
“The scale and
complexity of this criminal threat has necessitated an enhanced focus on
cooperative, cross-jurisdictional responses by Australian governments,” home
affairs minister Peter Dutton said in the second reading speech of the bill.
However, critics of the
scheme warn that existing unexplained wealth laws undermine the rule of law and
broadening their scope will lead to a further erosion of civil liberties. And
while these laws are meant to target untouchable crime bosses, they’re actually
being used against petty criminals.
Presumption of guilt
“These beefed-up laws
bring down all the secret surveillance and the swapping of scuttlebutt
masquerading as intelligence on everyone in Australia,” Civil Liberties Australia CEO
Bill Rowlings told Sydney Criminal Lawyers.
“The unexplained wealth
laws completely overturn the presumption of innocence, which is part of our
rule of law in Australia,” he continued. “They are sneaky laws which declare
you as guilty in the eyes of the law the minute the police say you are guilty.”
Unexplained wealth laws
are a recent development in Australia. But, unlike other
proceeds of crime laws that allow for the confiscation of assets derived from
prosecuted criminal acts, unexplained wealth places the onus upon the
individual to prove their wealth was legally acquired.
“People don’t
understand, under these laws the government can confiscate your assets even if
you haven’t been found guilty of anything,” Mr Rowlings stressed.
Broadening the reach
These laws apply where
there are “reasonable grounds to suspect” an individual’s assets have been
derived from a committed federal
offence, “a foreign indictable offence or a state offence that has a
federal aspect.”
There are three sorts of
orders that can be sought in relation to unexplained wealth. Section 20A of the Act provides that a court can issue
an unexplained wealth restraining order, which is an interim order that
restricts an individual’s ability to dispose of property.
Section 179B of the Act allows for the issuance of a
preliminary order, which requires a person to appear in court to prove their
wealth is legitimate. And under section 179E, an order can be issued requiring that the
payment of an amount of wealth deemed unlawful be made to the government.
The new legislation
amends sections 20A and 179E, so that these orders can be issued in respect to
relevant offences of participating states, as well as in relation to territory
offences. Relevant state offences will be outlined in state legislation that
enables participation in the national scheme.
Sharing it around
The legislation broadens
the access authorities have to an individual’s banking information in relation
to an unexplained wealth investigation.
Section 213 of the Act allows certain authorised
Commonwealth officers to issue access notices to financial institutions. This
provision will now be extended to states and territory law enforcement
agencies.
Proposed section 297C of
the Act outlines how federal, state and territory governments will divvy up the
seized wealth. A subcommittee will be established to distribute the money. And
while any state that opts out of the scheme will be eligible for a share, it
will be a less favourable amount.
Backdoor revenue raising
The NSW government has
already introduced legislation into parliament, which enables that state
to participate in the national scheme. The legislation sets out that the
relevant offences the laws apply to are set out in section 6(2) of the Criminal Assets Recovery Act 1990.
NSW police minister Troy
Grant told parliament that the legislation allows the state to refer matters to
the Commonwealth, which then authorises the Australian federal police to use
certain NSW offences as a basis for the confiscation of unexplained wealth.
But, Mr Rowlings states
that the nationalising of the scheme will actually streamline a process that
sees the unwarranted confiscation of wealth to prop up government coffers.
“The cash seized is
paying for extra government lawyers to help seize more cash,” Mr Rowlings made
clear, “so it’s a devious upward spiral where more and more unconvicted people
will have their assets taken, and then have to prove their innocence or the
government gets their assets.”
Read the full
article here.
