ADDITIONAL COMMENTS BY THE AUSTRALIAN GREENS
1.1
The Crimes Legislation Amendment (Organised Crime and Other Measures)
Bill 2012 (the Bill) has two main functions: Schedule 1 relates to unexplained
wealth proceedings and Schedule 2 addresses firearms trafficking.
1.2
The Australian Greens generally agree with the report on the Bill from
the majority of the Legal and Constitutional Affairs Committee.
1.3
However, we have some concerns about Schedule 1 of the Bill, insofar as
it purports to harmonise provisions relating to the payment of legal expenses
for unexplained wealth.
1.4
Item 2 of Schedule 1 repeals subsections 20A(3A)-(3C), and section 179SA,
of the Proceeds of Crime Act 2002 (POC Act) in order to remove the court's
discretion to allow a person who is subject to unexplained wealth proceedings
to pay his or her legal expenses using the restrained assets.
1.5
A substantial number of those who made submissions to the inquiry,
including the Law Council of Australia, the Queensland Council for Civil
Liberties, Liberty Victoria and the Law Society of South Australia, raised
concerns about this issue.
1.6
Although the Explanatory Memorandum (EM) to the Bill states that this
amendment 'will harmonise provisions relating to the payment of legal expenses
for unexplained wealth cases with those for other proceedings under the POC Act',
the Australian Greens are not convinced that this is necessary and are
concerned that it will unduly compromise an individual's ability to defend an
unexplained wealth action.
1.7
As argued by the Law Council, unexplained wealth proceedings have a
number of unique features, which would justify a different approach to other
proceedings in the POC Act:
In the Law Council's view it is appropriate that people
subject to unexplained wealth proceedings might have access to restrained
property to meet their legal fees, even though people subject to other types of
proceedings under the [POC Act] do not. The unexplained wealth proceedings
are unique in nature. First, the threshold that must be met before a person's
assets may be restrained is lower in the case of unexplained wealth
proceedings. Further, once a preliminary unexplained wealth order has been
secured, the burden is placed on the respondent to demonstrate that their
wealth and assets have been legitimately derived, rather than on the state to
demonstrate otherwise. Therefore, to avoid being ordered to pay the
Commonwealth a specified amount, the respondent must do more than meet or
counter the state's case, but must prepare and present his or her own positive
case, supported by evidence.[1]
1.8
Should these sections be repealed, an individual subject to unexplained
wealth proceedings will be unable to use their restrained assets to pay for
legal representation. However, unexplained wealth proceedings are complex
matters, likely to require legal counsel as well as instructing solicitors and
forensic accounting experts.
1.9
Because of strict eligibility criteria, and restrictions on how legal
aid funding can be used, concerns were raised by submitters that legal aid is
likely to be inadequate in such a situation.
1.10
The Law Council of Australia's submissions argued that legal aid funding
is inadequate for those subject to unexplained wealth proceedings, in terms of
meeting eligibility requirements and accessing the kind of legal costs needed
to defend such an action. It concluded that no reliable assurance can be given
that a person facing unexplained wealth litigation will be able to access a
level of legal representation which enables them to fairly contest the proceedings.
1.11
These concerns would be addressed by preserving the court's discretion
to allow access to restrained funds for the purposes of legal representation.
1.12
In our view, the Bill does not establish cogent grounds for removing the
court's discretion. There is no evidence that the current discretion undermines
the effectiveness of the POC Act's unexplained wealth provisions. As
acknowledged by the Attorney General's Department, the current provisions have
not been tested:
To date, no unexplained wealth proceedings have been
commenced. As such, it is not possible to point to cases in which respondents
have sought to dissipate restrained assets to meet the costs of legal expenses
related to [POC Act] proceedings.[2]
1.13
In any event, the Law Council pointed out that the right to use
restrained funds for legal costs is not automatic, as the court must exercise
discretion to allow this. This includes the ability for a court to order that a
costs assessor must certify how legal expenses were incurred, before permitting
payment from restrained funds.
1.14
The Australian Greens recommend that the Bill preserve the sections of
the POC Act that provide the court with discretion to allow a person who is
subject to unexplained wealth proceedings to pay his or her legal expenses
using the restrained assets.
Senator Penny
Wright
Australian
Greens
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