Proceeds of Crime
Commonwealth Minister for Justice, Michael Keenan, has introduced amendments in Parliament today that will tighten laws used to pursue proceeds of crime.
The Crimes Legislation Amendment (Unexplained Wealth and Other Measures) Bill 2014 adopts recommendations for reform by the Parliamentary Joint Committee on Law Enforcement.
Proceeds of Crime Legislation.
Unexplained wealth laws were introduced in 2010 as part of a suite of reforms to more effectively prevent and investigate organised crime activity, and target the proceeds of organised crime groups. The laws are located in the Proceeds Of Crime Act, which provides a comprehensive scheme to trace, investigate, restrain and confiscate proceeds generated from Commonwealth indictable offences, foreign indictable offences and certain offences against State and Territory law.
Under Commonwealth unexplained wealth legislation, if a court is satisfied that there are reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired, the court can compel the person to attend court and prove, on the balance of probabilities, that their wealth was not derived from one or more relevant offences. If a person cannot demonstrate this, the court may order them to pay to the Commonwealth the difference between their total wealth and their legitimate wealth.
There are three types of order which can be sought in relation to unexplained wealth:
- unexplained wealth restraining orders
- preliminary unexplained wealth orders, and
- unexplained wealth orders.
Unexplained Wealth Restraining Orders
Unexplained wealth restraining orders are interim orders that restrict a person’s ability to dispose of or otherwise deal with property. These provisions ensure that property is preserved and cannot be dealt with to defeat an ultimate unexplained wealth order.
Preliminary Unexplained Wealth Orders
Preliminary unexplained wealth orders are orders requiring a person to attend court to demonstrate whether or not his or her wealth was derived from lawful sources. If the court is not satisfied that the person’s wealth was not derived from an offence against a law of the Commonwealth, a foreign indictable offence or a State offence that has a federal aspect, it must then make an unexplained wealth order. The court has a discretion whether to make the order if there are not reasonable grounds to suspect that the unexplained wealth amount is more than $100,000, or where it is not in the public interest to make the order.
Unexplained Wealth Orders
Unexplained wealth orders are final orders that make payable to the Commonwealth an amount which, in the court’s opinion, constitutes the difference between a person’s total wealth and the value of the person’s property which the court is satisfied was not derived from the commission of a relevant offence. That is, the difference between their total wealth and their wealth that has been legitimately acquired.
- include a statement in the objects clause about undermining the profitability of criminal enterprise
- ensure evidence relevant to unexplained wealth proceedings can be seized under a search warrant
- streamline affidavit requirements for preliminary unexplained wealth orders
- allow the time limit for serving notice of applications for certain unexplained wealth orders to be extended by a court in appropriate circumstances
- harmonise legal expense and legal aid provisions for unexplained wealth cases with those for other POC Act proceedings so as to prevent restrained assets being used to meet legal expenses
- allow charges to be created over restrained property to secure payment of an unexplained wealth order as can occur with other types of proceeds of crime order
- remove a court’s discretion to make unexplained wealth restraining orders, preliminary unexplained wealth orders and unexplained wealth orders once relevant criteria are satisfied, including inserting an additional safeguard, and
- require the AFP Commissioner to provide a report to the PJC-LE annually on unexplained wealth matters and litigation, and to empower the Committee to seek further information from federal agencies in relation to such reports.
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