Page 1684 - Week 06 - Thursday, 23 July 2020
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unexplained wealth scheme and provides for unexplained wealth restraining orders and unexplained wealth orders. This will enable the restraint and, ultimately, the forfeiture of property by a person connected to a serious criminal offence, putting the onus on the criminals to show that their money is not linked to criminal activity.
The bill will enable authorities to target wealth where it is not possible to prove a direct connection between assets and a specific criminal offence, even though the criminal activity may be well known. Through the establishment of this scheme, authorities will be able to intervene proactively when wealth is identified and there is a suspicion that it has been derived from serious criminal activity. This approach facilitates law enforcement powers to detect and deter crime by targeting assets associated with crime and undermining the underlying business model of organised crime.
The bill is consistent with schemes that have been established by other jurisdictions, and it works by shifting the burden of the onus of proof onto the respondent to show that they lawfully acquired their wealth. This ensures that a person with the ability to explain their source of wealth is afforded an opportunity to do so. The bill makes significant inroads into depriving criminals of their illegal profits. Under the existing civil forfeiture scheme the court must be satisfied that the person has committed a serious offence. This requires the Director of Public Prosecutions to prove on the balance of probabilities that the person committed the offence. In the overwhelming number of cases, forfeiture occurs following a criminal conviction; but under this bill the DPP now need only present evidence that a police officer suspects that a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired and the whole or any part of the person’s wealth was derived from serious criminal activity. The bill provides that the evidence required does not require the police officer to specify a particular offence for serious criminal activity and it is sufficient if the police officer suspects and the affidavit describes the nature of the activity in general terms.
The provisions relating to hardship relief are an important safeguard contained within this bill. They allow the scheme to operate effectively and also protect the human rights of a person against whom an order is made and those of their dependants. The human rights measures included in this bill allow a court the discretion to refuse to make an order, or make an order to reduce the amount that is payable, if it considers that it is in the public interest to do so. A consideration that a court will need to have regard to amongst matters relevant to the circumstances of the case will be the new purpose of the act—that is, to deprive a person of any unexplained wealth derived from serious criminal activity. Further, at the final order stage, the court has discretion to make an order once the final order amount is paid, to provide for living expenses of dependants.
These discretions act as a very important safeguard. The financial and personal circumstances of a person who is the subject of the confiscation of criminal assets proceedings can vary significantly, and, accordingly, this bill ensures that the restraining and forfeiture provisions, including as they apply to the unexplained wealth scheme, will operate in a proportionate way and will not result in unreasonable financial hardship for a person or their dependants.
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