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Crime (Confiscation of Profits) Amendment Bill 2018

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Tuesday, 25 September 2018

Tags: Legislation

Dr WOODRUFF (Franklin) - Madam Speaker, I rise to comment for the Greens on this independent review of Part 9 of the Crime (Confiscation of Profits) Act 1993. I want to return to the original passage of the principal act which went through this place in August 2013. It was the subject of long and considered debate and a very useful tripartite decision was reached to amend the original bill before the House and insert the requirement for this review to take place, a proposal that was put first by Mr Morris, the Greens member, seconded by other members including Mr McKim, adopted by the Labor minister, Mr Wightman, and also supported by the Liberal Party member, Mr Groom. 

There was a unanimous agreement from all members who spoke that a review would be a very sensible thing to be conducted. When an act such as this is as complex as it is, and seeks to overturn a clear important foundation of our legal system which is the presumption of innocence, it is very important that we look to reviewing that legislation and consider the impact of it after a suitable period of time has passed. Three years was generally considered to be enough time to have collected some evidence and to be able to make a considered assessment. I thank Mr Bugg for the work he did. It is certainly a good review and I like the way he prepares his information.

The Greens have taken a position on the underlying legislation that there is not a strong enough case for an overwhelming public benefit to support reversing the onus of proof, which is what this legislation in fact does. It basically means that if a person is convicted of a crime, certain property flowing from the profits of that crime are confiscated by the state. It also means that profits can be forfeited if a person is not convicted of a crime but, where there is good evidence and speculative evidence, a relationship is established to suggest those profits arise from criminal activities.

The concern was in part about who would be scooped up by this legislation. Concerns were raised by numbers of members. Members from the Liberal Party and the Greens were raising uestions as to whether the effect of this legislation would be to target the 'Mr Bigs', or whether 'Mr Littles' would be inadvertently captured by this legislation. I will return to that matter when I go to some comments made by Mr Bugg about the evidence we have as to how unexplained wealth has been applied in this state since the law passed.

Parliaments need to be very careful when reversing the onus of proof. It is one of the most important foundations of the legal system. It has always remained with the Crown and relates to the presumption of innocence, that you are innocent in the eyes of the law until you are proven guilty.

This legislation this bill seeks to amend already gives the state the power to seize property or wealth without proving a crime has been committed and it is a significant reversal of the onus of proof. The purpose of introducing the statutory review, which was supported by parliament, was so that there could be a serious investigation of the impacts of this legislation. What we find is interesting. Annexure C of the DPP's report provides the information of the moneys that were seized in the 2015-16 financial year. Moneys were seized from four people with quite varied amounts, the smallest being $3000 and the largest being $700 000, totalling $823 000 in that financial year in all. Maybe incorrectly, but I heard the minister say that all of the forfeitures had been consented to or negotiated. That is not how I read annexure C from the DPP but perhaps the minister could give me -

Ms Archer - You might be reading civil and criminal together instead of applying to one.

Dr WOODRUFF - I am referring to annexure C in relation to 2015-16. I noticed that for the three larger amounts, $30 200, $90 000 and $700 000, those three matters were negotiated and were agreed to between the defendant and the DPP.

Ms Archer - That is a consent order.

Dr WOODRUFF - That is the consent order? Is it not in relation to unexplained wealth seizures?

Ms Archer - A consent order is that it is agreed rather than forced.

Dr WOODRUFF - Yes, that is right. Correct, but in the case of Scott Cripps,[TBC] who had $3000 seized, there was initially an amount of $5010 from an overseas account and $630 in cash, which was seized from his house. Mr Cripps was charged with trafficking in a controlled substance and numerous drug-related summary matters such as possessing, use and sale. The matter involved small quantities of numerous uncommon controlled drugs and steroids being imported by the accused. The accused claimed they were for personal use for body building. The accused was also sending large sums of cash to the Philippines and China. The accused's wife and friend were intercepted by police in the process of spending $5010 overseas and $630 in cash was seized from their house. The accused claimed they send money to his wife's family in the Philippines and cash at the home was in savings. There were some difficulties in proving the accused was trafficking, given the quantities of the drugs located. The matter was negotiated and was dealt with in the Magistrates Court with numerous amendments to the complaint to encapsulate the true criminality. The amount of $2640 was returned to the accused and $3000 was forfeited as unexplained wealth. This amount was reflective of his admission to selling steroids. However, the amount sold could not be particularised to be dealt with as a pecuniary penalty or forfeiture order. 

This raises a number of concerns for me in reading this report. It is a starkly different case to the other three reported for that financial year. The largest difference is the amount involved. Second, an initial amount of $2640 was returned to the accused, almost half of what had been seized. It was recognised subsequently that almost half of the amount seized by police needed to be returned and ought not to have been seized in the first place.

It is also clear this is a marginal case, by the DPP's admission. The matters involved small quantities of numerous, uncommon controlled drugs and steroids. However, there were difficulties in proving the accused was trafficking, given the quantities of the drugs located. How I read it - and the minister might correct me - but it does sound as though we are talking about a borderline case between personal levels and trafficking levels and that is indeed borderline. We need to keep a close eye on how this act is being applied. 

This is nothing like the case of the $700 000 in unexplained wealth seized from Royden Swan in December 2015. It was clear Mr Swan was operating a business of selling drugs and the assets seized could be used to infer the scale of the trafficking. That man was sentenced to four years imprisonment and the other people involved were sentenced to 12 months imprisonment that was suspended on condition they did not offend again. That is an utterly different scale and it was quite clear from the other evidence surrounding that case that criminal activities were occurring. 

We need to be very mindful of what this bill does enable. It does enable a presumption of innocence to be set aside and for people to be presumed guilty so that monies can be taken by the Crown. In all cases, that needs to be done in a way that is utterly transparent. The evidence used by the DPP or police needs to be part of a very clear chain of evidence so that suitable investigation or assessment by an external statutory body, if needed, can be applied to make sure things are being done properly. It is a very unusual situation that parliament has agreed to.

There are two others things I would like to ask for the minister's views on. Mr Bugg, on page 28 of the report, Mr Bugg makes reference to cryptocurrency and he says that the Tasmania Police advised him in a follow-up meeting after he had taken oral submissions that law enforcement agencies had identified serious organised crime groups and individuals were utilising cryptocurrency as a covert mechanism of increasing and concealing wealth, making legitimate purchases and financing criminal activities such as drug trafficking. Cryptocurrency and its use to hide profits of crime is a matter that is evolving and other jurisdictions are considering what actions they might take. 

The use of cryptocurrency and whether the act should be amended to ensure appropriate powers for Tasmania Police or other law enforcement agencies to discover the existence and amount of any cryptocurrency as part of an investigation of unexplained wealth, is worthy of further consideration by the Government. 

This bill before us does not attend to cryptocurrency. Perhaps the minister could talk about where the Government is up to, whether other legislation is forthcoming and, if you know it, what other jurisdictions are doing in terms of legislating on that matter? 

The second issue relates to the Public Trustee and issues addressed by Mr Bugg in the report. In its submission to this review, the Public Trustee raised some matters that it suggested would be assisted by amendments to the act and a number of these have been dealt with in the act. Mr Bugg makes reference to a possible amendment to section 158 in relation to the Public Trustee being able to claim reimbursement for the cost of a pre-sale property valuation if, prudently, the Public Trustee engaged a valuer to ensure the property was being sold for an appropriate price. These are minor costs but important costs to recoup so the Public Trustee is not out-of-pocket in these matters. 

As a matter of policy, Mr Bugg recommended the Government might wish to put the matter beyond doubt with an appropriate amendment to section 158 and it seems the Government has chosen not to do that. He also suggested the Government may wish to consider providing the Public Trustee with a policy direction or guidance about the appropriate payment of fees and charges, including capital commission based fees, which it may incur in complying with orders under the act. What was the thinking about the amendment to section 158 suggested by Mr Bugg? Has there been any consideration made to providing a policy direction to the Public Trustee in relation to the appropriate payment of fees and charges when they are complying with orders under the act?

The Greens made a submission to Mr Bugg's review and he addressed the two concerns we raised very thoroughly and I thank him for his attention to that. We will continue to keep an eye on the seizures made in relation to this unexplained wealth and confiscation of profits act because it is very important we are attentive when we are providing for such a change in the long-standing legal presumption of innocence within our justice framework. 

I thank the staff who provided the work and briefing on this and look forward to the minister's comments in response to the questions I have asked.