Tuesday, 30 September 2014
Crimes Legislation Amendment (Unexplained Wealth and Other Measures) Bill 2014; Second Reading
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated into Hansard.
The speech read as follows—
Serious and organised crime poses a significant threat to Australian communities. The Government is committed to ensuring our nation is safe and secure, and to taking tough steps to strike at the heart of organised crime. It is for this reason that we are today taking action to strengthen Commonwealth laws that target 'unexplained wealth'.
Unexplained wealth laws turn the tables on criminals who live off the benefits of their illegal activities at the expense of hard working Australians. They also provide an avenue to target the criminal kingpins who enjoy the proceeds of crime, without committing actual crimes themselves. In appropriate circumstances, unexplained wealth laws allow a court to order a person to demonstrate that his or her wealth was lawfully acquired. If they are unable to do so, the person may be ordered to forfeit their illegitimate wealth.
Unexplained wealth laws are a highly effective tool in the fight against serious and organised crime. Taking the profit out of crime undermines the entire business model of criminal groups and prevents illicit funds being reinvested to support further criminal activity.
In our Policy to Tackle Crime, the Coalition Government promised to strengthen Commonwealth unexplained wealth laws to ensure we have the toughest framework possible to target criminal proceeds. This commitment followed the 2011 inquiry by the Parliamentary Joint Committee on Law Enforcement (PJC-LE) into the Commonwealth's unexplained wealth laws and arrangements.
In its final report, the PJC-LE found that the unexplained wealth provisions in the Proceeds of Crime Act 2002 (POC Act) were not working as intended. The Committee made 18 recommendations aimed at improving the investigation and litigation of Commonwealth unexplained wealth matters. While some of these recommendations have been implemented, there are a number outstanding. We're seeking to rectify this situation as part of our commitment to make the Commonwealth's unexplained wealth laws as effective as possible.
Measures in the Bill
The measures in the Bill are designed to:
I will now outline the amendments in each of these categories in further detail.
Effective law enforcement framework
To ensure that law enforcement powers are sufficient to target and restrain criminal assets, the Bill will amend existing search and seizure powers in the Proceeds of Crime Act to allow authorised officers to seize material relevant to unexplained wealth. This amendment will address some uncertainty that exists under current arrangements and ensure that material relevant to unexplained wealth proceedings can be seized when searching premises under a warrant.
Other measures will enhance the ability of law enforcement to share information obtained under the Proceeds of Crime Act with appropriate State, Territory and foreign authorities. This will ensure agencies are able to work cooperatively to effectively recover all proceeds of crime, including unexplained wealth.
To balance the expansion of these powers, the Bill requires the Commissioner of the Australian Federal Police to report annually to the PJC-LE on the number of unexplained wealth investigations and applications. This will strengthen the PJC-LE's oversight of the use of the provisions and ensure appropriate checks on the use of unexplained wealth investigative powers.
Streamlining processes for obtaining unexplained wealth orders
As well as ensuring that law enforcement agencies are better placed to attack the profits of criminal syndicates, the Bill also responds to PJC-LE recommendations aimed at improving the efficiency and fairness of unexplained wealth laws.
Under the Bill, a court will no longer have an overarching discretion to refuse to make unexplained wealth orders for suspected wealth of $100,000 or more. The PJC-LE considered that there were adequate safeguards already contained in the Act. The court will retain its discretion for orders for suspected wealth of less than $100,000 and will still be able to refuse to make an order if satisfied that it is not in the public interest. Removing the general discretion will improve certainty for all parties, while also maintaining appropriate protections for those subject to unexplained wealth orders.
The Bill will also reduce unnecessary duplication in affidavit requirements by repealing certain requirements where police have already presented the same affidavit material to support an earlier related application.
The Bill will also improve the court's ability to enforce an unexplained wealth order by setting out a process to allow restrained property to be used to pay a debt owed to the Commonwealth under an unexplained wealth order. This will improve the enforcement of unexplained wealth orders and bring the scheme into line with other types of orders in the Proceeds of Crime Act.
Closing loopholes in the Proceeds of Crime Act
The Bill will also close loopholes in the Proceeds of Crime Act identified by the PJC-LE and by law enforcement.
The Bill will prevent restrained assets, which may have been unlawfully acquired, from being dispersed on legal expenses by people who are trying to frustrate an unexplained wealth case. They will instead be able to seek representation through legal aid, as is the case with other proceeds of crime orders.
The Bill will also clarify that a person whose property is subject to a preliminary unexplained wealth order is prevented from frustrating unexplained wealth proceedings by simply failing to appear when ordered to do so.
In addition to the further minor amendments made by the Bill, these changes represent a major reform of Commonwealth unexplained wealth laws. The measures have been informed by the PJC-LE's comprehensive inquiry and extensive consultation with law enforcement agencies and other stakeholders.