Tasmania to debate the Crime (Confiscation of Profits) Amendment (Unexplained Wealth) Bill 2013

The fight against organised crime continues with the introduction of the Crime (Confiscation of Profits) Amendment (Unexplained Wealth) Bill 2013 into Tasmania’s Legislative Council. The Bill passed the House of Assembly last week. The new laws will allow the Supreme Court to make an unexplained wealth declaration against a person who ostensibly lives beyond their legitimate income, unless the person can establish the wealth was obtained lawfully.

The State’s power to confiscate assets resulting from criminal acts is well-recognised in criminal justice; indeed, legislation governing the confiscation of proceeds of crime exists in all state and federal jurisdictions.

Tasmania is the latest of a number of Australian jurisdictions who have decided to go further, intrducing unexplained wealth laws, which operate differently to the above-mentioned confiscation legislation. Unexplained wealth laws reverse the onus of proof, placing it on the individual whose wealth is in dispute. That is, in jurisdictions with unexplained wealth laws, the State does not need to establish on the balance of probabilities that the wealth has been acquired by criminal activity, but instead, the onus is on an individual to prove that their wealth was acquired by legal means. The laws permit the Supreme Court to order payment by the impugned person to the state of the amount calculated as being the value of the person's unexplained wealth.

Despite vocal protests from civil libertarian groups, Attorney-General Brian Wightman said the new laws were similar to laws in most other Australian jurisdictions and were an important tool in the fight against organised crime.

 "Safeguards have been included to provide checks and balances between the policies of combating the power of organised crime and the preservation of civil freedoms," he said.

"The main objective of this legislation is to disrupt and deter serious organised crime," Mr Wightman said.

 "The provisions of the Bill are squarely aimed at people who appear to live beyond their legitimate means of support."

In response to the assertion that existing Tasmanian laws were adequate because they allowed for profits to be confiscated, but only after a conviction, Mr Wightman responded by highlighting the experience from other states.  This experience demonstrates the limits of conviction-based forfeiture laws because they often will not apply to senior crime figures as these figures often fund and support crime, but seldom carry out crimes or offences themselves.

 "Often they cannot be directly linked to specific offences and consequently existing conviction-based forfeiture orders do not apply," he said.

Controversy has surrounded laws designed to combat gangs and organised crime, in particular whether or not to refer law making power for laws of this nature from the States to the Commonwealth, with Queensland and Western Australia blocking support for national anti-gang law at a COAG meeting earlier this year.

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