Chapter 1
Introduction and background
The referral
1.1
On 5 March 2014, the Crimes Legislation Amendment (Unexplained Wealth
and Other Measures) Bill 2014 (the bill) was introduced into the House of
Representatives by the Minister for Justice the Hon Michael Keenan MP.[1]
On 6 March 2014, on the recommendation of the Selection of Bills Committee, the
Senate referred the provisions of the bill to the Legal and Constitutional
Affairs Legislation Committee (the committee) for inquiry and report by 15 May
2014.[2]
The reporting date was later extended by the Senate to 5 June 2014.[3]
Background
1.2
Unexplained wealth laws were added to the Proceeds of Crime Act 2002 (POC
Act) in February 2010[4]
as part of 'a suite of reforms to more effectively prevent, investigate and
litigate organised crime activity, and target the proceeds of organised crime'.[5]
The unexplained wealth provisions in the POC Act 'allow the court to make
orders with respect to the restraint and forfeiture of assets where the 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'.[6]
1.3
In July 2011 the Parliamentary Joint Committee on Law Enforcement
(PJC-LE) undertook a review of those laws and released a report (which set out
18 recommendations for improvements) in March 2012. In November 2012, the then
Labor government introduced the Crimes Legislation Amendment (Organised Crime
and Other Measures) Bill 2012 (the 2012 bill) into the House of
Representatives. Schedule 1 of the 2012 bill contained amendments to the POC
Act that would have implemented some of the recommendations of the PJC-LE.[7]
The 2012 bill lapsed at the end of the 43rd Parliament.[8]
The proposed amendments
1.4
The bill currently before the committee, the Crimes Legislation
Amendment (Unexplained Wealth and Other Measures) Bill 2014, is comprised of
two schedules.
Schedule 1—Unexplained wealth
1.5
Schedule 1 seeks to amend the POC Act to strengthen the operation of the
unexplained wealth provisions and improve the investigation and litigation of
unexplained wealth matters[9]
by implementing the PJC-LE's recommendations to:
-
include a statement in the objects clause of the POC Act 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 certain circumstances;
-
harmonise legal expenses 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
-
require the Commissioner of the Australian Federal Police (AFP) to
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.[10]
1.6
These amendments seek to implement recommendations 1, 5, 8, 10, 11, 12
and 13 (in part), of the PJC-LE's 2012 report.
1.7
Schedule 1 to the bill also contains amendments that would:
-
clarify that an unexplained wealth order may be made where a
person who is subject to the order fails to appear at an unexplained wealth
proceeding;
-
ensure that provisions in the POC Act that determine when
restraining orders cease to have effect take account of the proposed new
provisions allowing charges to be created and registered over restrained
property to secure payment of unexplained wealth amounts and the fact that
unexplained wealth restraining orders may sometimes be made after an
unexplained wealth order;
-
streamline the making of preliminary unexplained wealth orders
where an unexplained wealth restraining order is in place;
-
remove affidavit requirements in support of applications for
preliminary unexplained wealth orders;
-
ensure 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; and
-
extend the purposes under which information obtained under the
coercive powers of the POC Act can be shared with State, Territory and foreign
authorities.[11]
1.8
Schedule 2 to the bill contains amendments to correct minor drafting
errors in the POC Act.[12]
Structure of the report
1.9
This report comprises two chapters. This chapter provides background to
the inquiry and the bill. Chapter 2 addresses concerns raised by stakeholders
in respect of the bill. Concerns raised related to items within Schedule 1 of
the bill. Schedule 2 of the bill did not attract any comment during the
committee's inquiry.
Conduct of the inquiry
1.10
The committee advertised the inquiry in The Australian newspaper
on
19 March 2014. Details of the inquiry, including links to the bill and associated
documents, were published on the committee's website at www.aph.gov.au/senate_legalcon.
The committee also wrote to over 80 organisations and individuals inviting
submissions by 3 April 2014.
1.11
The committee received 10 submissions, which are listed at Appendix 1
and were published on the committee's website. A public hearing was held in
Canberra on 15 May 2014. A list of witnesses who appeared at the hearing is at
Appendix 2. The Hansard transcript from the hearing can be accessed on
the committee's website.
Acknowledgment
1.12
The committee thanks those stakeholders who made submissions and gave
evidence at the public hearing.
Note on references
1.13
References to the committee Hansard are to the proof Hansard:
page numbers may vary between the proof and the official Hansard
transcript.
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