THE CO-OPERATION between the Government and Opposition in Parliament on Monday in relation to suspicious wealth legislation was heartening. It’s hopefully an approach we will see more of. But whether the brief show of goodwill will guarantee the bill’s passage in the Senate – where Independents must scrutinise it – or shield it from legal challenge are entirely different matters.
The long title of the bill makes plain its aims. The Civil Asset Recovery and Management and Unexplained Wealth Bill 2019 seeks to do several things in one stroke. It sets up a special agency to take control of criminal assets, outlines processes by which State entities can red-flag suspicious wealth and empowers the State to charge assets in civil courts in the absence of convictions.
The legislation also, importantly, goes so far as to empower authorities to restrict assets even before any court has ruled. In other words, it gives law enforcement authorities whopping stopgap powers pending the resolution of legal applications.
Going into Monday’s sitting, suspicion was high in relation to the suspicious wealth bill. The Opposition and commentators noted its invasiveness, and hours before its passage, the Law Association, in an important intervention, listed 35 objections. All of the suspicion, it seems, was momentarily overcome during the committee stage of the legislation where changes were made.
Does this bode well for the soundness of the legislation? It will not be forgotten that instances when a law was passed unanimously resulted in provisions that later turned out to be fundamentally flawed. The list includes the process by which the Commissioner of Police is selected; the anti-gang legislation; and, most infamously, the Section 34 fiasco.
The bill itself has important aims which all should endorse. Still, some of its provisions, which relate to criminal and civil streams of forfeiture, are clearly draconian. The population will be looking to take the Government at its word when it assures that granny and tantie’s house will not be inadvertently and wrongly swept up. Some might be more assured by a detailed study from a Parliament joint select committee.
Meanwhile, it’s clear the new asset agency must report to Parliament, its orders are not secret, and while the standard of proof for the criminal stream is less than beyond reasonable doubt, “reasonable grounds to believe the property is criminal property” is better than a mere hunch.
For now, we welcome passage of this bill if it takes us closer to grounding crime and terrorist activity. We agree with its statement that “no one should be able to profit from criminal conduct.” If people cannot explain their wealth, or if law enforcement authorities can demonstrate in a court of law why assets are likely the proceeds of crime, then the State should have the discretion to intervene in a manner that balances individual rights with the needs of society.