New laws to seize criminals’ unexplained wealth

• New legislation will require those suspected of serious crime to prove the lawful origins of property
• Unexplained wealth laws a powerful tool to disrupt and deter serious and organised crime
• Napthine Government building a safer Victoria

The Victorian Coalition Government will today introduce legislation into Parliament to establish an unexplained wealth confiscation scheme in Victoria.

The scheme will allow a court to order the restraining of all the property of a person suspected on reasonable grounds of serious criminal activity. The onus will then be on the person concerned to have property released from the restraint by showing that it has lawful origins. Where they cannot do so, the assets will be forfeited.

The legislation will also allow a court to order the seizure and restraint of a particular asset or assets suspected on reasonable grounds of being unlawfully acquired. The onus will then be on persons claiming ownership to come forward and demonstrate the lawful origins of the property.

Premier, Dr Denis Napthine said “Unexplained wealth laws are a powerful tool to disrupt and deter serious and organised crime. If serious criminals can’t show where their wealth came from, they’ll have to hand it over.”

Attorney-General, Robert Clark said “At present, before an asset can be confiscated, authorities have to be able to show either that the asset was used in committing a crime or that the particular asset was derived from the proceeds of crime.

“Under these reforms, authorities won’t need to show a link between particular assets and crime – if a person’s total assets are greater than they can explain by legitimate sources, the excess will be forfeited.

“In future, anyone who seeks to profit from organised crime will know that anything they can’t show was lawfully acquired is at risk of being forfeited.

“Unexplained wealth laws are potentially a powerful tool to target and disrupt serious and organised crime, and these laws will facilitate joint operations between Victoria and other jurisdictions.”

Mr Clark said the power to authorise the seizure and restraint of individual assets would particularly assist front-line police in tackling and disrupting lower level drug traffickers and other criminal elements.

“Where a suspected drug trafficker has an expensive car, boat or other asset that police suspect was purchased with the proceeds of crime, they will be able to obtain an order to seize that asset, in a similar manner to obtaining a warrant to seize suspected stolen goods,” Mr Clark said.

“The court will then decide whether the asset seized was lawfully acquired or not, just as the court now decides whether or not suspected stolen goods were stolen.”

Mr Clark said the legislation included a range of safeguards:

• where a restraint order is sought on the basis that the person was engaged in serious criminal activity, this will need to be based on reasonable grounds. Serious criminal activity will be defined in legislation, and will generally capture offences punishable by five years or more imprisonment and involving the generation or concealment of criminal wealth.
• a person subject to an unexplained wealth restraint order will be able to appeal against that order, including on the grounds that they were not in fact engaged in serious criminal activity.
• the court will be able to authorise reasonable living expenses and legitimate business payments to be made out of restrained property until it is determined whether or not the property was lawfully acquired.
• third parties with a lawful interest in restrained property will be able to apply to have their interest in the property excluded from any forfeiture.
• family members and others who can demonstrate they would suffer undue hardship from the forfeiture will be able to apply to the court for a payment from the forfeited assets as relief from that undue hardship.

The legislation will also:

• contain anti-avoidance provisions that will allow the State to target lawfully acquired assets where a person tries to frustrate the laws by hiding unlawfully acquired assets from confiscation.
• require it to be demonstrated that property given as a gift was lawfully acquired by the person who gave it – this will stop people seeking to evade the laws by passing wealth to relatives or friends.

Unexplained wealth laws similar to those contained in the Bill currently exist in all other Australian jurisdictions, other than the Australian Capital Territory. The new laws will operate alongside existing asset confiscation laws and the penalty in legislation currently before the Parliament for those convicted of trafficking in large commercial quantities of drugs to forfeit almost everything they own.

Mr Clark said improving consistency in confiscation laws between jurisdictions was important to ensure organised crime groups could not exploit gaps in a state or territory’s legislation.

“Increasing national cooperation in the area of unexplained wealth and criminal asset confiscation was discussed in July by Attorneys-General and Police Ministers at the Law, Crime and Community Safety Council,” Mr Clark said.