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Unexplained Wealth Bill undermines presumption of innocence

Speeches in Parliament
Penny Wright 9 Feb 2015

Senator WRIGHT (South Australia) (10:53):  I rise to speak about the Crimes Legislation Amendment (Unexplained Wealth and Other Measures) Bill 2014. In particular, today I want to speak about the aspects of this bill that entrench the inequality of arms, undermine the presumption of innocence and therefore offend the rule of law. Like every other senator in this place, I am repulsed by the idea of criminals benefiting from the proceeds of their crimes. Australia must and does already have an extensive proceeds of crime regime in place to ensure that those who break the law do not profit from their crimes. But let's be very clear about what the existing law already allows.

Under existing law, a person who may not even be suspected of engaging in a criminal offence can be required to front up to a court and prove that his or her home, car or other assets have been legally obtained. There is no requirement for the police to show that there is a link between the asset and the commission of any specific criminal offence. Even if the asset was legally obtained, the person will lose it unless they can provide sufficient proof that it was lawfully acquired.

But this bill seeks to extend this regime into a new frontier of unfairness, where those who are required to prove to a court that their assets were legally obtained would be denied access to the type of legal representation that they want and need. Currently, where a person's assets are restrained in an action like this, a judge hearing the matter has the discretion to allow the person to use their assets to pay for their legal defence. But this bill will remove that discretion totally.

The feature of this bill that raises particular concerns for the Australian Greens, and for many legal experts who have made submissions in relation to these amendments over consecutive parliamentary inquiries, is the removal of this discretion. Many of these concerns are also shared by the Parliamentary Joint Committee on Human Rights. These concerns arise both from the practical implications of them but also principle.

As a starting point, the amendments proposed in the bill are completely unnecessary. There has been no case made for these amendments. The court can already refuse to allow a person to use their assets for the purpose of obtaining legal advice where they have been issued with an unexplained wealth order if the court is concerned, for instance, that the real purpose is to dissipate the assets so they cannot be seized by the state, by the government.

There is no evidence in the explanatory memorandum that the existence of this discretion as it currently stands has been misused or has jeopardised the outcome of unexplained wealth proceedings. There is no evidence in the explanatory memorandum-the memorandum which is designed to explain the rationale for the legislation we are being asked to agree to. The government has given no compelling reasons to justify taking this discretion away from the party which is best placed to make this call: the court. As is usually the case, it is the judge, the court, who is privy to the information and the evidence and can assess the merits of the person's application-in this case, to use their assets to obtain legal advice and representation.

Then there are the principle issues. In the situation where a person is being subjected to a very significant action by government to remove their assets, this bill will force parties to look to legal aid for assistance. This will compound existing pressure on legal aid services in an environment in which the legal assistance sector is already notoriously overloaded. Victoria Legal Aid's submission to the Senate inquiry into this bill, for instance, made it clear that diverting people who want to contest unexplained wealth proceedings into the legal aid scheme will see an increase in applications for funding for complex and protracted litigation, which would require sizeable payments to legal representatives and forensic experts, if indeed their defence is to be done properly.

In our society, under the rule of law, people are entitled to mount an appropriate defence to actions by government like this. This is a serious concern. There is clear evidence of already significant existing levels of unmet need in the legal assistance sector. They are in our newspapers. They are in our faces every day. This means that people are already prevented from getting the legal assistance they need. Increasingly, it is not just the poorest Australians but also middle Australians as well. It is having damaging consequences, both for individuals and also for the structure of our legal system, the basis on which our legal system has been established. For instance, there has been a huge increase in self-represented litigants in litigation generally but particularly in the Family Court, which means people are unable to get the legal advice and representation they need. They are being forced to try and run complex cases on their own. This is the existing situation, without the change that is mooted in this bill.

There is also doubt as to the capacity of any legal aid grant to meet the costs that would be sustained in an unexplained wealth matter. As discussed in the Law Council of Australia's submission to the Senate inquiry into this bill, there is generally a need for specialist commercial expertise in responding to unexplained wealth orders. That does not come cheap, and there are often restrictions on using legal aid funding to obtain expert reports.

They are the practical implications. I said they were the matters of principle but in fact they are the practical implications of the provisions in this bill. But there are also really important matters of principle if we are going to be living in a country that is subject to the rule of law. Fairness and the rule of law require people to have adequate legal representation and the ability to defend themselves in legal proceedings, especially when they have not been charged with or convicted of a criminal offence. This is known as the equality-of-arms principle. It is colloquially expressed in a term we are all familiar with-the right to a fair go. The idea of a right to a fair go is an Australian principle and an Australian ethic.

In direct contrast to this principle, this bill forces those who face an unexplained wealth order to rely upon legal aid in order to be able to obtain legal representation. They might have means available to them but they will be forced to rely on legal aid. It will mean that a person who is required by law to explain to a court how his or her house or car was lawfully obtained has to join the end of a very long legal aid queue while the government instructs the best legal and financial experts that money can buy.

The government's recent announcement of $11 million of extra funding for litigation specialists tasked with conducting confiscation proceedings and forensic accountants in cases such as this makes it abundantly clear that that the inequality of arms is likely to be on a monumental scale. This gives rise to the real risk that innocent people who have failed to keep receipts or records may lose their lawfully acquired assets. It is totally unacceptable in Australia in 2015.

For these reasons, the Australian Greens recommend that items (3) and (24) of the bill be removed. This will preserve the existing judicial discretion about accessing restrained funds for legal costs and protect Australia's legal resources such as in the legal assistance sector without impacting on legitimate aims of Australia's proceeds-of-crime regime. It will mean that it is judges and courts that are best positioned to understand the risk of someone not being able to adequately represent and defend themselves in the face of these sorts of proceedings that make that call. The Australian Greens will be seeking to amend the bill in line with these recommendations in the committee stage.

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