Wilkinson Kate: Criminal Proceeds (Recovery) Bill — First Reading 
Wilkinson Kate: Criminal Proceeds (Recovery) Bill — First Reading 
[Volume:638;Page:8124] 
KATE WILKINSON (National) 
: 
 In speaking in support of the first reading of the Criminal Proceeds (Recovery) Bill it is useful to repeat the object of the bill which is a worthy one set out in the explanatory note. It is “to make more effective provision for the confiscation of property that either represents the profits of criminal offending or was used to facilitate the commission of crime.” It has been said that the bill is intended to repeal the Proceeds of Crime Act 1991 but I have to say its passage so far has not exactly been speedy. Unlike the previous speaker Jill Pettis I do not believe it has been timely; in fact it is somewhat overdue. But having said that the bill is now before the House so let us make sure it proceeds with due expedition. 
Mr Power my learned colleague has stated that nearly 2 years ago the Criminal Proceeds and Instruments Bill was introduced to Parliament. According to the then Minister of Justice Phil Goff millions of dollars a year were to be confiscated from gangs and organised crime. At that stage it was estimated that up to $14 million per year would be recovered under that new legislation—which would now have been old—with about 70 confiscations per year. It is disturbing that 2 years later there have been approximately $28 million of lost proceeds and 140 lost opportunities to confiscate property and we now have the newly named bill the Criminal Proceeds (Recovery) Bill. We have asked why this bill has taken so long to even get to the House and why the previous bill mysteriously disappeared from the Order Paper 2 years ago. 
Under the currently existing Proceeds of Crime Act 1991 the owner of property has to actually be convicted of a criminal offence before property can be confiscated. This bill departs from that and introduces a non-conviction - based regime to deal with property other than items actually used to commit or facilitate the commission of criminal activity. A court can order the confiscation of such property if it has reasonable grounds—and that means it is satisfied on the civil test of the balance of probabilities not the criminal test of it being beyond reasonable doubt—to believe that the person derived some benefit from criminal activity. In practice this may—and hopefully will—capture for example gang bosses who are at arm’s length from any actual offending but who on the balance of probabilities did actually benefit from such offending. 
We must ask however as a matter of principle whether it is acceptable to give the State significant powers of confiscation when it does not have sufficient evidence to prosecute those gang leaders in the criminal courts—in other words to rely on the lesser civil test of the balance of probabilities rather than on the criminal test of it being beyond reasonable doubt. This legislation should not be regarded as giving the courts the easier path and the less strenuous test of proof. Other jurisdictions internationally—and it is often sensible to align ourselves with some of them—such as those in the United Kingdom Ireland and Australia have introduced similar legislation to this enabling criminal proceeds to be targeted without a conviction necessarily being obtained. However I believe that we need to proceed cautiously. We need to be satisfied that the lesser standard of proof is used properly and not lazily and that safeguards are in place to prevent a misuse of that power in a fishing expedition in circumstances where for example there is not sufficient evidence even to arrest the defendant for the commission of a criminal offence. We need to be satisfied that there is a reasonable suspicion that a criminal offence has been committed in relation to the property in question and that the burden of proof is being applied properly to ensure justice and to avoid injustice. 
The other caution at this stage that I put on record relates to the department or organisation that is to be designated by the Attorney-General as the recovery body. The Minister has suggested that it will be the Serious Fraud Office. However it may be the police. I again caution that if it is to be the Serious Fraud Office that office has a dubious record in relation to cases such as the Westpac helicopter case Digitech and others. It certainly has a perceived poor prosecution rate. Despite the Serious Fraud Office having more powers than the police it seems to have significant orders for costs awarded against it for failed prosecutions. It draws criticisms from many including one judge troubled by its decision to pursue a case independently of the Inland Revenue Department. The judge himself said that he did not think that that prosecution was “reasonably and properly pursued”. With such a track record it is crucial that the select committee scrutinise and consider very carefully whether the Serious Fraud Office is or will be the appropriate body to oversee this Act. 
That was my very brief call in support of this bill. I look forward to being part of the select committee that scrutinises in more detail the terms of the bill and the issues raised by it. National supports this bill being submitted to the careful scrutiny of the select committee.