Williams, Daryl --- "Proceeds of Crime: the Government Responds" [1999] ALRCRefJl 29; (1999) 75 Australian Law Reform Commission Reform Journal 51

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Reform Issue 75 Spring 1999

This article appeared on pages 51 – 52 of the original journal.

Proceeds of crime: the government responds

The federal government has indicated the Proceeds of Crime report is an important part of its program to combat serious crime. Attorney-General Daryl Williams AM QC MP officially launched the report at a function at the Commission’s Sydney premises on June 16 - this is an edited text of his speech.

... It is my pleasure to launch the Commission’s most recent, and very substantial, report - Confiscation that counts: a review of the proceeds of Crime Act 1987.

When the Commonwealth Proceeds of Crime Act was enacted in 1987 it was ‘state of the art’ legislation. Along with the rest of what was known as the ‘organised crime package’, it earned Australia a leading role in the G7’s Financial Action Task Force, which has devoted many years to the international effort to combat the drug trade, organised crime and money laundering.

The Royal Commissions of the 80s exposed the vulnerability of Australia to exploitation by organised and financial crime. Their findings prompted the Commonwealth’s creative response of rendering the Australian environment inhospitable to such crime by providing the means for ill-gotten wealth to be traced, located, and ultimately confiscated.

The object was not only to prevent criminals from enjoying the proceeds of their crimes, but to ensure that those proceeds could not provide the capital to finance future criminal enterprises. The existence of legislation with powerful teeth was also intended to deter international criminals from perceiving Australia as a safe and profitable place for criminal exploitation.

However, more than 10 years on, and in a rapidly changing world, criminals are becoming more sophisticated, crime more globalised, prosecutions more complex, costly and problematic.

The government believed it was time for profound and detailed scrutiny of the Proceeds of Crime Act with a view to improving its effectiveness into the next millennium. We needed to identify any shortcomings in the Act and suggest innovations which might improve its capabilities.

The Australian Law Reform Commission has risen to that challenge with a thorough analysis of the operation of the Act.

It has made many recommendations which have the potential to increase greatly the reach of the legislation and its capacity to strip the illicit wealth from those criminals who have considered themselves successful and safe.

One of its recommendations which would bring about a major policy change in the Commonwealth’s approach to proceeds of crime, is a proposal for non-conviction based recovery of proceeds of crime. This would allow confiscation of proceeds derived from prescribed unlawful conduct on the basis of the civil standard of proof.

Other recommendations include a simplified process for the making of restraining orders; expanded money laundering provisions; provision for confiscation of literary proceeds or any proceeds derived from the commercial exploitation of criminal activities; and proposals for dealing with the troublesome issue of the payment of legal expenses from restrained assets.

These are only a few of the Commission’s proposals. The report is a substantial piece of work and contains almost 100 recommendations. I expect to see an intensive consultation process and period of analysis based on this report before the commendable efforts of the Commission culminate in new legislation on this very important subject.

The Coalition is totally committed to seeing that laws are in place at the federal level to enable law enforcement and the justice system to deal effectively with serious crime.

New and strengthened laws to attack the proceeds of crime will be an integral part of our commitment. Such laws will complement the three major programs that the Coalition is currently putting in place: The Tough on Drugs Strategy; CrimTrac and the Building Safer Communities program.

In Tough on Drugs, the Howard government has committed additional funding over four years to continue efforts in combating the problem of illicit drugs ... CrimTrac is a national crime information system ... (representing) a $50 million investment by the Commonwealth in an enhanced National Automated Fingerprint Identification System, a National DNA Criminal Investigation System, and a National Child Sex Offender System, all with the capacity to provide real time access to national operational policing information...

The Building Safer Communities program is aimed at identifying and promoting effective ways to reduce and prevent crime, and, importantly, the fear of crime in our society ... the government has shown its commitment to combating crime and creating a safe environment for Australians at all stages of their lives.

Many departments and agencies are engaged to a greater extent in the same fight. As well as adequate funding, they need the best tools they can get to carry on the campaign.

The Australian Law Reform Commission makes a worthwhile contribution through its references in helping provide the operation agencies with the best and most appropriate legislative tools for their various tasks ... the report on the Proceeds of Crime Act, Confiscation that counts, is an example of the Commission’s work in that area...