Chauvel Charles: Criminal Proceeds (Recovery) Bill — First Reading 
Chauvel Charles: Criminal Proceeds (Recovery) Bill — First Reading 
[Volume:638;Page:8133] 
CHARLES CHAUVEL (Labour) 
: 
 I rise to speak in support of the first reading of the Criminal Proceeds (Recovery) Bill. It is clear I think to most of us that organised and serious crime is a major problem and it is increasing. Where it is established that the tools available to the State to protect innocent people from serious and violent organised crime and also to prevent from punishing those who are involved in such crime are not available then it is appropriate for this House to consider equipping the State with those tools. Having heard the Minister’s introductory speech I would be prepared to support the introduction of the legislation. If there is evidence that the tools currently available are not sufficient then they should be beefed up. 
But I do have considerable sympathy with the views expressed by previous speakers about the need for Parliament to take great care when introducing and considering legislation of this nature—particularly legislation that would alter our understanding of hitherto fundamental freedoms such as the burden of proof and the way in which we deal with property. I refer in particular to the presumption that the courts operate under—that Parliament will never be regarded as having deliberately deprived a person of property without a right to compensation without the clearest possible words being used in the legislation. 
These are fundamental aspects of our constitution. It is largely an unwritten constitution and it is important that when we consider how to deal with scourges like serious and organised crime we do not simply come up with knee-jerk reactions throw the baby out with the bathwater—or whatever metaphors we like to use—and encroach unduly on civil liberties in a way that we would come to regret. In the end in our country we are without a written constitution and without courts that can strike down legislation. Parliament is the guardian of the rule of law and we need to take great care when we deal with measures that may tamper with the balance. 
I support the introduction of the legislation but I would urge the select committee—and I imagine this will be referred to the Law and Order Committee—to consider it carefully and to test the evidence in favour of it. It is important to ensure that we as parliamentarians are properly satisfied that the current legislation is inadequate. We proudly operate a system in this country where virtually all legislation comes before a select committee and that is a great system. It is as far as I am aware without parallel. Most other countries do not allow all legislation to be the subject of public scrutiny but we do. We do it because we are genuinely interested in giving people a right to be heard on legislation because we profess as a Parliament to care about the views of our citizens. 
One of the things that it is important to urge on colleagues on the committee when they hear the evidence on this legislation is to satisfy themselves that there is need. What are the ways in which the Proceeds of Crimes Act 1991 currently does not work? What is the evidence from the police from prosecutors and from others involved in law enforcement that the tools available to the State are not currently adequate? I hope the committee will test the people involved in the prosecution of offences to satisfy themselves whether there really is a need for this legislation. That is very important. 
I think it would also be useful if the committee considers calling evidence from the criminal defence bar—people who have had considerable experience in defending those accused of serious crime. The committee ought to satisfy itself that experts on both sides of the fence do share concerns that the current legislation is not working as it was intended. If there are views that would persuade the committee that there is not the compelling need that we have heard for this legislation then I hope the committee will voice that view with reasons and let the House know accordingly. 
The other important point to make about this legislation is that when the matter does go before the committee I would hope the committee will also test the protections that are said to exist in the bill. As I have said this bill does make some relatively fundamental alterations to the way in which we have hitherto considered the manner in which justice should be delivered. Our criminal law system supposedly is based on the notion that it is far better to see nine guilty people set free than to see one innocent person convicted. But one of the problems with the effective erosion—for example of the onus of proof in a quasi-criminal matter such as confiscating the property of a supposed serious criminal—is that those notions are if not reversed then thrown into some serious level of disarray. 
We are told there are sufficient protections in the legislation. As I say I do hope that the committee will look at that contention very carefully. Clearly it is an advantage that the High Court is the court of record that is seized with jurisdiction in civil matters under this legislation rather than one of the inferior courts. It is to be hoped that that is an indication from the Government that only the most senior judges will be considering these cases at trial level. That is clearly appropriate if this legislation proceeds but again the committee should look at whether that is an adequate protection. 
Similarly the thresholds for the legislation need careful consideration. The forfeiture orders that are provided for under the bill kick in only where there is a crime of sufficient gravity. The threshold test in the bill is an amount at stake of $30000 and a term of imprisonment of more than 5 years. The committee should consider carefully whether those are appropriate levels of threshold or whether they should be raised given the other serious alterations to the system that the bill proposes. 
The 7-year limitation period back through which the legislation applies needs to be considered. It needs to be looked at very carefully to see whether it provides a sufficient level of protection to effectively impose that sort of limitation period or whether it ought to be a shorter period. It is a longer period for example than the ordinary civil standard of 6 years by way of limitation. 
Also the specificity of seizure orders needs to be carefully considered. Has the legislation confined those and required them to be defined? The applications for these orders need to be very tightly drawn so that property that might inadvertently fall outside them is not caught in any order made by the High Court. Perhaps it might be that a form of order should be provided for either in rules to be made under the legislation or in a schedule so that people can be satisfied if the legislation proceeds that there will be very tight drawing of any orders to be made under it. 
Clearly it is also important that innocent third parties be protected from any forfeiture or seizure orders that would be made under the legislation if it is enacted. It would not be an attractive scenario to see the property of innocent people affected or distrained under this legislation. So it will be important that any property that is truly held in common by persons who are not clearly involved in criminal proceedings will be protected. 
There are other matters that the select committee must assure itself of. For example is the Serious Fraud Office the appropriate body to house the recovery body under this legislation given concerns that have recently been expressed about the Serious Fraud Office’s record in successfully bringing prosecutions? Are the orders made under the Mutual Assistance in Criminal Matters Act likely to be appropriate? So all those matters clearly do need careful consideration if this legislation is to proceed. Thank you Mr Assistant Speaker. 
Nandor Tanczos 
: Mr Assistant Speaker— 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: The member has already spoken.