Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012
Submission Date: 31 January 2013
The Law Council of Australia provided a submission to comment on the provisions of the Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 (the Bill). The Bill has two primary aims:
- To amend the Proceeds of Crime Act 2002 (POCA) to address perceived shortcomings with the process for obtaining and enforcing unexplained wealth orders;
- To amend the Criminal Code Act 1995 to introduce a number of new and aggravated firearms offences directed at cross border and international firearms trafficking.
The Law Council’s submission is only concerned with the proposed amendments to the POCA and is specifically focussed on two matters:
- The proposed repeal of subsections 20A(3A) to (3C) and section 179SA so as to remove the court’s discretion to allow the legal expenses of a person who is subject to unexplained wealth proceedings to be paid out of their restrained assets; and
- The proposed amendments to subsections 227(1), 228(1) and 338 which would allow officers executing a search warrant under the POCA to seize things that are relevant to unexplained wealth proceedings.
The Law Council opposes the removal of the judicial discretion to allow legal expenses to be met from restrained assets. The relevant provisions were inserted into the POCA as a result of considerable parliamentary debate, negotiation and compromise. The provisions are just three years old and, to the Law Council’s knowledge, have never been tested. Any suggestion that those provisions might work to frustrate the aims of the POCA are purely speculative and based on the same assertions that parliament considered and ultimately dismissed when the unexplained wealth regime was introduced into the POCA.
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 POCA 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.
Finally, in the Law Council’s view, it is incorrect to suggest that allowing a person access to legal aid sufficiently offsets any disadvantage incurred by him or her not having access to restrained assets to retain legal representation of his or her own choosing. The nature of the legal advice and representation available to a legally aided person is potentially more limited in nature than that available to a self funded litigant, even one who is necessarily prudent in deciding how and to what extent to contest the proceedings brought against him or her.
Last Updated on 30/04/2025
Share
Tags
Most recent items
Business Law Section
Regulation of Payment Service Providers—Tranche 1a draft legislation
Business Law Section