Navigation: Previous Page | Contents | Next Page

Part 1 Bills introduced 3 – 6 March 2014

Bills requiring further information to determine human rights compatibility

Crimes Legislation Amendment (Unexplained Wealth and Other Measures) Bill 2014

Portfolio: Attorney-General
Introduced: House of Representatives, 5 March 2014

Summary of committee concerns

1.1        The committee notes that a number of the measures in this bill have been re-introduced as a result of the lapsing of the Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 (the 2012 bill) at the end of the 43^rd Parliament.

1.2        The committee draws attention to its previous comments in relation to the 2012 bill.[1] The committee reiterates its concerns that the unexplained wealth scheme in the Proceeds of Crime Act 2002 (POC Act) sought to be amended by this bill may involve the determination of a criminal charge, and that the operation of the presumption of unlawful conduct involves a significant encroachment on the right to a fair hearing. The committee also re-iterates its expectation that statements of compatibility include sufficient justification for proposed limitations on rights, particularly where the committee has previously raised concerns with a measure.

1.3        In relation to measures in the current bill which were not previously contained in the 2012 bill (and accordingly have not previously been commented on), the committee:

• seeks clarification as to why it is necessary to enable an unexplained wealth order to be made in relation to a person in the absence of that person, given the implications of this measure for the right to a fair hearing; and
• notes the lack of justification included in the statement of compatibility for the information disclosure provisions proposed by the bill.

Overview

1.4        This bill seeks to make amendments to the POC Act and is intended to strengthen the Commonwealth’s unexplained wealth regime and improve the investigation and litigation of unexplained wealth matters.

1.5        The existing unexplained wealth regime in the POC Act enables a court to compel a 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.

1.6        There are three types of orders which can be sought under the POC Act in relation to unexplained wealth:

• Unexplained wealth restraining orders: interim orders that restrict a person's ability to dispose of or otherwise deal with property.
• Preliminary unexplained wealth orders: orders requiring a person to attend court to demonstrate whether or not his or her wealth was derived from lawful sources. If a court is not so satisfied, it must then make an unexplained wealth order. The court has a discretion whether to make the order in certain circumstances.[2]
• Unexplained wealth orders: final orders that make payable to the Commonwealth the difference between a person's total wealth and the value of the person's property which the court is satisfied was not derived from the commission of a relevant offence.

1.7        The bill seeks to amend the POC Act to:[3]

• include a statement in the objects clause about undermining the profitability of criminal enterprise;
• ensure evidence relevant to unexplained wealth proceedings can be seized under a search warrant;
• streamline affidavit requirements for preliminary unexplained wealth orders;
• allow the time limit for serving notice of applications for certain unexplained wealth orders to be extended by a court;
• harmonise legal expense and legal aid provisions for unexplained wealth cases with other POC Act proceedings to prevent restrained assets being used to meet legal expenses;
• allow charges to be created over restrained property to secure payment of an unexplained wealth order;
• remove a court’s discretion to make unexplained wealth restraining orders, preliminary unexplained wealth orders and unexplained wealth orders once relevant criteria are satisfied;
• require the AFP Commissioner to provide a report to the PJC-LE annually on unexplained wealth matters, and to empower that committee to seek further information from federal agencies in relation to any such report;
• clarify that unexplained wealth orders may be made where a person who is subject to the order fails to appear at an unexplained wealth proceeding;
• ensure that provisions that determine when restraining orders cease to have effect take account of the new provisions allowing charges to be created and registered over restrained property, and the fact that unexplained wealth restraining orders may be made both after and before an unexplained wealth order;
• streamline the making of preliminary unexplained wealth orders where an unexplained wealth restraining order is in place (or has been revoked);
• remove redundant and unnecessary affidavit requirements in support of applications for preliminary unexplained wealth orders; and
• ensure that a copy of the affidavit relied upon when a preliminary unexplained wealth order was made is provided to a person subject to the order in light of the above changes to the affidavit requirements for preliminary unexplained wealth orders.

1.8        The bill also seeks to extend the purposes for which information obtained under the coercive powers of the POC Act can be shared with a state, territory or foreign authority by:

• enabling the disclosure of information to a state or territory authority for proceedings under state or territory proceeds of crime laws or forfeiture laws, and/or to decide whether to institute proceedings under those laws; and
• enabling the disclosure of information, where the proceeds or instruments of crime concerned would be capable of being confiscated under Australian laws, to foreign authorities that have either or both the function of investigating or prosecuting offences against a law of that country and identifying, locating, tracing, investigating or confiscating proceeds of crime under a law of the country.

Compatibility with human rights

Statement of compatibility

1.9        The statement of compatibility for the bill notes that it engages the right to a fair hearing,[4] including minimum guarantees in criminal proceedings,[5] the right to privacy[6] and the prohibition on retrospective criminal offences.[7]

1.10      The statement concludes:

[t]he Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. To the extent that [the bill] may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate in achieving the intended outcomes of the Bill.[8]

Committee view on compatibility

Previous committee views

1.11      As noted above, the committee reported on a number of the measures contained in the bill in its comments on the 2012 bill.[9] These are the measures to:

• ensure evidence relevant to unexplained wealth proceedings can be seized under a search warrant;
• allow the time limit for serving notice of applications for certain unexplained wealth orders to be extended by a court in appropriate circumstances;
• harmonise legal expense and legal aid provisions for unexplained wealth cases with those for other POC Act proceedings to prevent restrained assets being used to meet legal expenses;
• allow charges to be created over restrained property to secure payment of an unexplained wealth order as can occur with other types of proceeds of crime order;
• remove a court’s discretion to make unexplained wealth restraining orders, preliminary unexplained wealth orders and unexplained wealth orders once relevant criteria are satisfied; and
• expand the PJC-LE's oversight of unexplained wealth investigation and litigation.

1.12      The committee's comments addressed the compatibility of the above measures with the right to a fair hearing, the right to a fair trial and the right to privacy.

1.13      In particular, the committee sought further clarification from the former minister as to whether, with reference to human rights case law and jurisprudence, the unexplained wealth scheme in the POC Act should be viewed as effectively involving a criminal penalty for the purposes of the International Covenant on Civil and Political Rights (ICCPR). The committee noted that this question was relevant to an analysis of the minimum guarantees in criminal proceedings likely to be triggered by the measures in the 2012 bill, particularly the right to legal representation.

1.14      On consideration of the former minister's response, the committee remained concerned that the unexplained wealth provisions in the POC Act may involve the determination of a criminal charge.

1.15      Further, the committee noted that the presumption of unlawful conduct on which the unexplained wealth scheme is premised was a significant encroachment on the right to a fair hearing, and that the statement of compatibility and response from the minister had not provided sufficient justification for this limitation.

1.16      The committee draws attention to the comments on the 2012 bill and re‑states these concerns in relation to the current bill.[10]

1.17      The committee notes that the statement of compatibility for the current bill is identical to the statement of compatibility for the 2012 bill, and does not address the concerns raised previously by the committee on this issue.

1.18             The committee expects that, where it has raised concerns in relation to a measure in a bill, any subsequent re-introduction of the measure is accompanied by a statement of compatibility addressing the committee's previously identified concerns.

Right to a fair hearing

1.19      The bill currently before the committee also includes a measure clarifying that unexplained wealth orders may be made where a person who is subject to the order fails to appear at an unexplained wealth proceeding. This:

will ensure that persons in relation to whom a preliminary unexplained wealth order has been made are not able to frustrate unexplained wealth proceedings by simply failing to appear when ordered to do so. These are important features of the laws, which serve the justified and reasonable purpose of preventing a person from dispersing his or her assets during the time between an order being sought and an order being made.[11]

1.20      However, the statement of compatibility also states that:

[i]n some situations, applications for POC Act orders such as unexplained wealth restraining orders or preliminary unexplained wealth orders may be heard without notice being given to the person who is the subject of the application at the time the application is made.[12]

1.21      Given that in some circumstances an unexplained wealth restraining order or preliminary unexplained wealth order may be heard without notice being given to the person who is the subject of the order, it appears that a possible consequence of this measure is that a person may be the subject of an unexplained wealth order without being notified of such. In any case, given that the scheme operates on the basis of a presumption of unlawful conduct which a person must rebut in order to avoid the making of an unexplained wealth order against them, the committee has concerns regarding the compatibility of this measure with the right to a fair hearing.

1.22      In particular, it is not evident to the committee why it is necessary to enable a court to make an unexplained wealth order where the person is not present for the purpose of 'preventing a person from dispersing his or her assets during the time between an order being sought and an order being made'. It appears to the committee that the provision made by the POC Act for an unexplained wealth restraining order to be heard without notice being given to the person who is the subject of the application would be sufficient to achieve this objective.

1.23             The committee intends to write to the Minister for Justice to seek clarification as to why it is necessary to ensure a court is not prevented from making an unexplained wealth order in the absence of the person who is the subject of the order, including evidence or examples of where preventing the court from doing so has frustrated the objectives of the scheme.

Right to privacy

1.24      As set out above, this bill also extends the purposes for which information obtained under the coercive powers of the POC Act can be shared with a State, Territory or foreign authority to include a proceeds of crime purpose.

1.25      As set out in the statement of compatibility, in order for limitations on the right to privacy to be justified, it must be demonstrated that the limitation serves a legitimate objective, is rationally connected to that objective and is proportionate to that objective. While the statement of compatibility sets out the reasons why the proposed information sharing provisions are necessary (ie, what the legitimate objective is), it does not address how the provisions are proportionate to this objective. Central to this analysis will be the safeguards that apply so as to ensure that such information sharing powers are appropriately circumscribed.

1.26      The committee notes that existing section 266A(2) of the POC Act sets out the threshold test for when such information may be disclosed to State, Territory and foreign authorities for purposes related to proceeds of crime. Such information may only be disclosed by a person for this purpose if the person believes on reasonable grounds that the disclosure will serve that purpose. Existing sections 266A(3) – (8) of the POC Act set out the limits on the use of the information disclosed.

1.27      The committee also notes that the provisions proposed by the bill allowing the disclosure of information to foreign authorities for the purposes of identifying, locating, tracing, investigating or confiscating proceeds of crime are further prescribed by limiting such disclosures to those countries where the identification, locating, tracing, investigation or confiscation could take place under Commonwealth, State or Territory proceeds of crime laws if the proceeds related to an offence against a law of the Commonwealth, State or Territory. In effect, this limits the disclosure of information to those countries where the proceeds or instruments of crime concerned would be capable of being confiscated under Australian laws, if the proceeds or instruments had related to an offence against Australian laws.[13]

1.28             On this basis the committee makes no further comment on this measure. However, the committee re-iterates its expectation that statements of compatibility include sufficient justification of proposed limitations on rights, including how such limitations are proportionate to the objective sought to be achieved.

Navigation: Previous Page | Contents | Next Page