Queensland Law Society

Unexplained wealth law a mystery

Date 16 Apr 2013
Contact Natalie Graeff, Manager Corporate Communication
Phone (07) 3842 5868
Mobile 0488 433 884
Fax 07 3221 9329
Email n.graeff@qls.com.au

Queensland Law Society said today they were mystified at why proposed unexplained wealth legislation was introduced when similar legislation already exists.

President Annette Bradfield said that the Criminal Proceeds Confiscation Act 2002 already enabled judges to penalise people convicted of major crime and drug offences in this manner

"Considering the government is keen to reduce red tape, the measures add nothing to the process already in place for convicted persons and in fact unnecessarily adds to existing legislation," Ms Bradfield said.

"In addition, the draft legislation makes confiscations too easy to occur and difficult to disprove.

"It reverses the onus of proof, has a low statutory test and impacts on the discretion of the courts.

"The reversal of the onus of proof is inherent in unexplained wealth laws, as there is an assumption that wealth and assets have been illegally obtained," Ms Bradfield said.

"This undermines the presumption of innocence and, totally contrary to how our legal system works, places an oppressive onus of proof on the respondent.

"Taking someone’s assets is a highly intrusive act and if this legislation goes through as currently drafted, the government is at serious risk of confiscating lawfully obtained assets and the assets of innocent people.

"There needs to be a link between the assets and commission of an offence.

"The low statutory test of ‘reasonable suspicion’ makes it very easy for assets to be seized as it’s a poor basis for acting.

"Surely for an action that’s as invasive as reaching into someone’s home, business or bank account and taking what’s there, a higher test than mere suspicion should be applied?

"Compounding the problem is a mandatory requirement for courts to make confiscation orders if someone is convicted of a serious drug offence.

"However, if the government is determined to bring in more legislation, we recommend the legislation at least be redrafted so the onus of proof is not reversed, the statutory test is stricter and the Supreme Court has the discretion to decide if an unexplained wealth order is required."