David Leyonhjelm (NSW, Liberal Democratic Party) Share 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.