Navigation: Previous Page | Contents | Next Page
Chapter 2 - Concluded matters
This chapter list matters previously raised by the committee
and considered at its meeting on 14 July 2014. The committee has concluded its
examination of these matters on the basis of responses received by the
proponents of the bill or relevant instrument makers.
Crimes Legislation Amendment
(Unexplained Wealth and Other Measures) Bill 2014
Portfolio:
Attorney-General
Introduced: House
of Representatives, 5 March 2014
Purpose
2.1
The Crimes Legislation Amendment (Unexplained Wealth and Other Measures)
Bill 2014 (the bill) seeks to amend the Proceeds of Crime Act 2002 (the
POC Act) to implement recommendations made by the Parliamentary Joint Committee
on Law Enforcement (the PJC-LE) in its final report on its inquiry into
Commonwealth unexplained wealth legislation and arrangements.
2.2
Schedule 1 of the bill amends the POC Act to implement the PJC-LE’s
recommendations to:
-
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 in appropriate
circumstances;
-
amend legal expense and legal aid provisions for unexplained
wealth cases with those for other POC Act proceedings so as 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
-
require the AFP Commissioner to provide a report to the PJC-LE
annually on unexplained wealth matters and litigation, and to empower the
PJC-LE to seek further information from federal agencies in relation to such a
report.
2.3
Schedule 1 would also amend the POC Act in ways that do not relate to
specific recommendations of the PJC-LE, which include:
-
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;
-
ensuring that provisions in the POC Act that determine when
restraining orders cease to have effect take account of the following matters:
the new provisions allowing charges to be created and registered over
restrained property to secure the payment of unexplained wealth amounts; and
the fact that unexplained wealth restraining orders may sometimes be made after
an unexplained wealth order (not only before);
-
further streamlining the making of preliminary unexplained wealth
orders where an unexplained wealth restraining order is in place (or has been
revoked under section 44 of the POC Act);
-
removing redundant affidavit requirements in support of
applications for preliminary unexplained wealth orders;
-
ensuring that a copy of the affidavit relied upon when a
preliminary unexplained wealth order was made must be provided to the person
who is subject to the order in light of changes to the affidavit requirements
for preliminary unexplained wealth orders outlined above; and
-
amending the POC Act to extend the purposes under section 266A
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.
2.4
Schedule 2 of the Bill seeks to correct minor drafting errors in the POC
Act that were identified during the drafting of the Bill.
Background
2.5
The committee reported on the bill in its Fourth Report of the 44th
Parliament.
2.6
The committee noted that a number of the measures in this bill were 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 43rd
Parliament.
2.7
The committee reiterated its concerns that the unexplained wealth scheme
in the POC Act sought to be amended by the bill may involve the determination
of a criminal charge, and that the operation of the presumption of unlawful
conduct involves a significant limitation on the right to a fair hearing. The
committee also re-iterated 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.
Committee view on compatibility
Right to a fair hearing
Presumption of innocence
2.8
The committee sought clarification from the Minister for Justice 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.
Minister's response
The Committee has sought my clarification in relation to
amendments in the Bill designed to ensure a court is not prevented from making
an unexplained wealth order where a person who is subject to the order fails to
appear at an unexplained wealth proceeding. The Committee notes that a possible
consequence of this measure is that a person may be the subject of an
unexplained wealth order without being notified of it. The Committee further
notes that it has concerns regarding the compatibility of this measure with the
right to a fair hearing, 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.
These amendments are designed to clarify the existing
provisions in the Proceeds of Crime Act 2002 (the POC Act) to ensure
that a person cannot frustrate unexplained wealth proceedings by simply failing
to appear before the court. They will operate in conjunction with existing
provisions in the POC Act which protect the rights of a person who is subject
to an application for an unexplained wealth order by imposing notification
requirements on the proceeds of crime authority that has applied for an order
against that person.
Under the current provisions in the POC Act, the process for
seeking an unexplained wealth order commences with a proceeds of crime
authority (either the Australian Federal Police or the Commonwealth Director of
Public Prosecutions) making an application for an unexplained wealth
restraining order (followed by a preliminary unexplained wealth order), or a
preliminary unexplained wealth order. As the Committee has noted in its Report,
these preliminary orders may be sought ex parte in some circumstances to ensure
that a person does not disperse his or her assets during the time between the
preliminary order being sought, and the time a final unexplained wealth order
is made.
Section 179N of the POC Act sets out the notice requirements
if a proceeds of crime authority has made an application for an unexplained
wealth order. Subsection 179N (2) currently provides that if a court makes a
preliminary unexplained wealth order, the proceeds of crime authority that has
applied for the order must, within seven days:
-
give written notice of the order
to the person who would be subject to the final unexplained wealth order if it
were made, and
-
provide to the person a copy of
the application for the unexplained wealth order, and affidavits used to
support that order.
Subsection 179N (3) provides that the proceeds of crime
authority must also ensure that the person is provided with a copy of other
affidavits used to support the application for the preliminary order. The
provision of this information must occur within a reasonable time before the
hearing in relation to whether the unexplained wealth order is to be made.
The Bill makes two amendments to extend the period in which
notice can be provided. New subsection 179N (2A) will allow a court to make an
order extending the time limit for serving notice by up to 28 days where the
court is satisfied that it is appropriate to do so, if a proceeds of crime
authority applies before the end of the original period for serving the notice.
New subsection 179N (2B) will provide that the court may extend the notice
period more than once. Extending the time limit for giving notice aims to cover
situations where, for example, a suspect is attempting to avoid service of the
notice or is temporarily absent from the jurisdiction. A court will have the
discretion as to whether to extend the time limit for serving notice, meaning
that independent consideration will be given as to whether an extension is appropriate.
The Committee has requested examples of where the absence of
a person who has failed to appear as required by a preliminary unexplained
wealth order has frustrated the objective of the unexplained wealth scheme. The
2012 report of the Parliamentary Joint Committee on Law Enforcement from its
inquiry into Commonwealth unexplained wealth legislation and arrangements noted
that the unexplained wealth provisions of the POC Act are not working as
intended. To date, no unexplained wealth applications have been made by
proceeds of crime authorities. The aim of the Bill is to generally strengthen
Commonwealth unexplained wealth laws to ensure the Commonwealth's unexplained
wealth scheme is as effective as possible.[1]
Committee response
2.9
The committee thanks the Minister for Justice for his response
and has concluded its examination of this bill.
Navigation: Previous Page | Contents | Next Page