Academic journal article
By Bartels, Lorana
Trends & Issues in Crime and Criminal Justice , No. 395
Foreword | Unexplained wealth laws are a relatively recent development in confiscation law, which require a person who lives beyond their apparent means to justify the legitimacy of their financial circumstances. Unexplained wealth laws are currently in place in the Northern Territory and Western Australia, while Commonwealth provisions recently came into effect. New South Wales has recently announced its intention to introduce laws mirroring the Commonwealth legislation. Similar laws are expected to come into effect shortly in South Australia. Laws of this nature are thought to deter would-be criminals by reducing the profitability of illegal activities and may prevent crime by diminishing offenders' ability to finance their future criminal acts. However, critics argue that the laws infringe on people's right to silence and undermine the presumption of innocence. This paper examines the evolution of unexplained wealth laws in Australia and considers the arguments for and against such provisions, as well as highlighting the need for further research in this area.
This paper considers the scope and impact of unexplained wealth laws in Australia and considers the arguments for and against such provisions. The power of the state to confiscate assets derived from criminal acts is well-accepted in criminal justice and each Australian jurisdiction has legislation governing the confiscation of proceeds of crime (see Bartels 2010). Some Australian jurisdictions have gone further, however, with the introduction of unexplained wealth laws. Laws of this nature place the onus of proof on the individual whose wealth is in dispute. In other words, in jurisdictions with unexplained wealth laws, it is not necessary to demonstrate on the balance of probabilities that the wealth has been obtained by criminal activity, but instead, the state places the onus on an individual to prove that their wealth was acquired by legal means. The paper draws on recent developments in this context, particularly the recent report of the Parliamentary Joint Committee on the Australian Crime Commission (PJC-ACC) on the legislative arrangements to outlaw serious and organised crime groups.
Existing unexplained wealth laws in Australia
Western Australia was the first Australian jurisdiction to introduce unexplained wealth laws, with the Criminal Property Confiscation Act 2000 (WA). Citing the parliamentary speeches when the legislation was introduced, Lusty (2002: 355) notes that the Act is 'squarely aimed at "those people who apparently live beyond their legitimate means of support"'. However, the legislation has also been the subject of criticism from academics and key stakeholders, including the WA Law Society and Criminal Lawyers' Association (see Clarke 2004, 2002).
The PJC-ACC (2009) identified the following key aspects of the WA and NT legislation, which was modelled on the WA provisions:
* the requirement that courts make an order if satisfied that a person's total wealth is greater than their lawfully acquired wealth. Courts have minimal discretion when making such orders;
* the reversal of the onus of proof in favour of the Crown, providing that 'any property, service, advantage or benefit that is a constituent of the respondent's wealth is presumed not to have been lawfully acquired unless the respondent establishes the contrary' (see Criminal Property Forfeiture Act 2002 [NT), s 71 (2); Property Confiscaüon Act 2000 (WA), s 12(2)); and
* respondents have a right to object to their property being restrained within 28 days of being served with an order restraining the property.
The legislation in both jurisdictions sets out the following processes whereby law enforcement and prosecutors can obtain information about criminal assets:
* the Director of Public Prosecutions (DPP) or police may require a financial institution to provide information about the transactions and/or assets of a particular person;
* the DPP can apply to the courts for an order allowing them to conduct an examination of a suspect individual, which can require a person to furnish the court with information and/or documents;
* the DPP can also obtain documents relating to assets or property by applying for a production order;
* the DPP can apply to the court for orders requiring a financial institution to monitor or suspend a person's account and provide that information to the police or DPP; and
* the police can detain a person if they have a reasonable suspicion that the person has, in their possession, property liable to forfeiture, or documents identifying or determining the value of a person's unexplained wealth. …