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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-10-13 Daily Xml
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SERIOUS AND ORGANISED CRIME (UNEXPLAINED WEALTH) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 23 September 2009. Page 3354.)

The Hon. DAVID WINDERLICH (17:50): This bill aims to financially punish people who cannot be proven to be directly involved in criminal ventures and are suspected of having received the proceeds of wealth obtained through illegal activities. The bill creates unexplained wealth orders for unexplained reasons.

Like the Serious and Organised Crime (Control) Act 2008, the Hydroponics Industry Control Bill 2009 and the Second-hand Goods Bill 2009, the legislation makes use of criminal intelligence to put so-called evidence beyond scrutiny. Again, like the other pieces of legislation mentioned previously, the burden of proof rests on the accused, requiring the defendants to prove their innocence by furnishing records that prove the assets in question were obtained legally. The presumption of innocence has been abandoned from yet another of the government's laws.

At the briefing on the bill it was made clear that this legislation is designed to target those people who the police suspect may have been involved in criminal activity but have no evidence to show this or way to prove involvement. That is worth repeating because it would have been a radical idea just a couple of years ago: this bill is designed to target people where there is no proof that they are guilty.

Essentially, the bill aims to penalise people on the basis of little more than suspicion protected by security provisions—a sort of double jeopardy where the evidence behind the suspicion cannot even be probed. The bill creates unexplained wealth orders for unexplained reasons. This is yet another bill that puts the onus of proving innocence on the defendant and seeks to make the job of police easier at the expense of justice. The bill raises a number of serious questions. If a person who the police suspect to have acquired illegal wealth is caught under this provision, the natural response would be for the person to sell the illegal assets to pay the penalties, creating liquid capital from the proceeds of the crime that ended up in the public coffers.

This is, in fact, the intention of the bill: to cripple suspected criminals through financial penalties and, if applied correctly, the government will be directly benefiting from the proceeds of crime. It is a bit like the role of smoking taxes in health promotion grabs.

The bill is also retrospective, undermining another established principle of legislation. Further, the government is claiming that the proceeds collected by the program will go to the Victims of Crime Fund yet, before it is deposited here, costs for implementing this legislation and the Serious and Organised Crime (Control) Act are to be deducted. It is a unique proposition almost to have self-funding criminal justice initiatives. I guess that increases the incentive to issue these orders.

I am extremely sceptical about just how much will find its way into the fund and how much will end up as a revenue raiser for SAPOL. We are now heading towards a state where a person's wealth can be confiscated. They can be banned from practising their profession or banned from seeing close friends, family and associates, all on the basis of a control order which was granted on secret evidence and which they had no chance to refute. We are headed towards a society that replaces facts with suspicion, rehabilitation with punishment and justice with expediency and revenue raising.

The bill creates unexplained wealth orders for unexplained reasons. We are headed towards a state that demonises subcultures through extreme generalisations that punish for publicity rather than long-term dispute resolution. Our legislation opens the way towards the marginalisation of minorities and puts few balances and checks on the increasing powers of the police and the minister.

It is also interesting in the context of the government moving this way and, generally, the opposition supporting it. The government moving this way is vehemently against an ICAC, which would introduce some sort of check on the use of such powers. I will be opposing this bill because of the numerous civil rights breaches it contains and its complete disregard for justice.

Debate adjourned on motion of Hon. J.M. Gazzola.

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