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RECOMMENDATIONS
Recommendation 1
3.22 The committee
recommends that the objects of the Proceeds of Crime Act 2002 be amended
so as to include a statement about undermining the profitability of criminal
enterprise, including but not limited to serious and organised crime. Such a
statement should be drafted in such a way to avoid causing unnecessary
complication of unexplained wealth proceedings.
Recommendation 2
3.78 The committee
recommends that Commonwealth Government explore the possibility of amending
legislation to allow the Australian Crime Commission Board to issue a
determination on unexplained wealth, so as to enable the Australian Crime
Commission to use its coercive powers to provide evidence in support of
unexplained wealth proceedings.
Recommendation 3
3.80 The committee
recommends that the Australian Crime Commission Act 2002 and the Proceeds
of Crime Act 2002 be amended as necessary to make clear that the Australian
Crime Commission's examination material can be used as evidence in proceedings
under the Proceeds of Crime Act 2002.
Recommendation 4
3.96 The committee
recommends that the Proceeds of Crime Act 2002 be amended so as to
enable an ACC examiner to conduct examinations in support of unexplained wealth
proceedings after a restraining order has been made by a court.
Recommendation 5
3.105 The
committee recommends that search warrant provisions of the Proceeds of Crime
Act 2002 be amended so as to allow for the collection of evidence that is
relevant to unexplained wealth provisions. The committee's preferred means of
amending the provisions would be to amend:
- subsection 228(1) to enable material that
is relevant to an unexplained wealth proceeding to be seized during the
execution of a search warrant; and
- subparagraph 228(1)(d)(iii) to remove the
requirement that the evidential material relate to an indictable offence.
Recommendation 6
3.114 The
committee recommends that the Criminal Assets Confiscation Taskforce be
prescribed as a taskforce under the Taxation Administration Act 1953 and
associated regulations.
Recommendation 7
3.121 The
committee recommends amending the Telecommunications (Interception and
Access) Act 1979 so as to allow the Australian Taxation Office to use
information gained through telecommunications interception, in the course of
joint investigations by taskforces prescribed under the Taxation
Administration Act 1953, for the purpose of the protection of public
finances.
Recommendation 8
3.140 The
committee recommends that the Proceeds of Crime Act 2002 be amended so
as to eliminate the requirement for authorised officers to meet an evidence
threshold test for a preliminary unexplained wealth order where the evidence
threshold test for a restraining order has already been met. Any amendment
should recognise the need to be able to update an affidavit to reflect new
evidence as appropriate.
Recommendation 9
3.151 The committee
recommends that provision be made for extending the time limit for serving
notice of a preliminary unexplained wealth order to accommodate extraordinary
circumstances.
Recommendation 10
3.178 The
committee recommends that legal expense and legal aid provisions for
unexplained wealth cases be harmonised with those for other Proceeds of
Crime Act 2002 proceedings so as to prevent restrained assets being used to
meet legal expenses.
Recommendation 11
3.182 The
committee recommends that the enforcement provisions for unexplained wealth
orders include an ability to create and register a charge over property that
has been restrained by the court to secure the payment of an unexplained wealth
order.
Recommendation 12
3.197 The
committee recommends that the court's discretion to make a restraining or
preliminary unexplained wealth order under subsections 20A(1) and 179B(1) of
the Proceeds of Crime Act 2002 be removed in cases where the amount of
unexplained wealth is more than $100 000, so that the court must make the order
in cases over $100 000.
Recommendation 13
3.200 The
committee recommends the court's discretion to make an unexplained wealth order
under subsection 179E(1) of the Proceeds of Crime Act 2002 be removed
where the amount of unexplained wealth is above $100 000, so that the court
must make the order in cases over $100 000, and that the following
additional statutory oversight arrangements be made:
- law enforcement agencies must notify the
Integrity Commissioner of unexplained wealth investigations;
- the Ombudsman must review and report to
Parliament the use of unexplained wealth laws in the same way that Ombudsman
does for controlled operations; and
- the oversight by the Parliamentary Joint
Committee on Law Enforcement be enhanced so that in addition to appearing when
required, that the ACC, AFP, DPP and any other federal agency or authority must
brief the committee on their use of unexplained wealth provisions as part of
the committee's annual examination of annual reports of the ACC and AFP.
Recommendation 14
4.45 The committee
recommends that the Commonwealth Government take the lead in developing a
nationally consistent unexplained wealth regime.
Recommendation 15
4.67 The committee
recommends that the Australian Government seek a referral of powers from the
states and territories for the purpose of legislating for a national
unexplained wealth scheme, where unexplained wealth provisions are not limited
by having to prove a predicate offence.
Recommendation 16
4.88 The committee
recommends that the Commonwealth Government actively participate in efforts to
establish international agreements relating to unexplained wealth.
Recommendation 17
4.96 The committee
recommends that the Commonwealth Government create and commit to a plan for the
development of national unexplained wealth scheme including the following
elements:
- identification and implementation of
short-term measures including cooperation with states with existing unexplained
wealth legislation;
- negotiation with States and Territories to
create or improve supporting mechanisms such an equitable sharing programs and
mutual assistance agreements;
- development of agreed guiding principles
around unexplained wealth; and
- a final objective of achieving a referral
of powers from States and Territories to enable the Commonwealth to legislate
for an effective and nationally consistent unexplained wealth scheme.
Recommendation 18
4.98 The committee
recommends that the Commonwealth Attorney-General immediately place the issue
of harmonisation of unexplained wealth laws on the agenda of the Standing
Committee on Law and Justice.
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