Proceeds of Crime Regulations 2019 [F2019l01045] [2019] AUPJCHR 99 (5 December 2019)

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Parliamentary Joint Committee on Human Rights

Purpose	To prescribe a number of matters related to the operation of the Proceeds of Crime Act 2002
Portfolio	Home Affairs
Authorising legislation	Proceeds of Crime Act 2002
Last day to disallow	15 sitting days after tabling (tabled in the Senate and in the House of Representatives on 9 September 2019).
Rights	Fair trial and fair hearing; privacy
Status	Advice only

1.211 The Proceeds of Crime Regulations 2002 (2002 Regulations) were to sunset on 1 October 2019. The Proceeds of Crime Regulations 2019 (2019 Regulations) remake the 2002 Regulations in their entirety, with some amendments.

1.212 Under the Proceeds of Crime Act 2002 (the Act), various actions can be taken in relation to the restraint, freezing or forfeiture of property which may have been obtained as a result, or used in the commission, of specified offences, including 'serious offences'. The term 'serious offence' is defined in the Act as including 'an indictable offence specified in the regulations'.^[2]

1.213 Section 13 of the 2019 Regulations provides that, for the purposes of the definition of 'serious offence' in the Act, the indictable offences set out in the tables in Schedule 4 to the instrument are specified. Schedule 4 prescribes various offences under the Australian Crime Commission Act 2002, the Copyright Act 1968 (Copyright Act) and the Criminal Code Act 2002 as 'serious offences' for the purposes of the Act. Some of these offences appear to be newly listed in the 2019 Regulations.^[3]

1.214 The measures in the 2019 Regulations extend the operation of the Act to a number of 'serious offences', and enliven restraint and forfeiture powers which may be exercised in relation to real property. In this respect, the measure engages and limits the right to privacy, which includes the right not to be subject to arbitrary or unlawful interference with a person's family, home or correspondence.^[4] Limitations on this right will be permissible where they pursue a legitimate objective, are rationally connected to that objective and are a proportionate means of achieving that objective.

1.215 Under the Act real property may be liable to seizure or forfeiture, even where a person has been acquitted of an offence, or where their conviction has been quashed.^[5] This appears to leave open the possibility that a person may be acquitted of an offence, but nonetheless have their property forfeited, because they have made mortgage payments, or made improvements on that property, using funds that the court considers on the balance of probabilities are 'proceeds' of crime.^[6] Further, it does not appear that a court would be able to revoke a forfeiture order following an acquittal. This raises concerns that the powers of restraint and forfeiture in the Act could be exercised in such a manner as to constitute an arbitrary interference with a person's home.

1.216 Noting that the Act was enacted prior to the establishment of the committee, and no statement of compatibility was provided for that legislation, it would be beneficial if the minister were to undertake a detailed assessment of the Act to determine its compatibility with the right to privacy.

1.217 The statement of compatibility to the 2019 Regulations recognises that prescribing offences as 'serious offences' for the purposes of the Act engages and limits the right to privacy, but asserts that the measures are 'necessary, reasonable and proportionate to achieve the legitimate objective of preserving public order and the rights and freedoms of those subject to serious criminal behaviour'.^[7] It further explains that designating the offences in Schedule 4 as 'serious offences' is necessary to remove the link between those offences and an actual or intended benefit, noting that the requirement to prove such a link 'unnecessarily frustrates' law enforcement's ability to address the financial support and incentives for organised crime.^[8] The statement of compatibility further provides detailed information about this matter in relation to each category of offences listed in Schedule 4 to the 2019 Regulations.

1.218 In general, preserving public order and the rights and freedoms of those subject to serious criminal behaviour is a legitimate objective for the purposes of international human rights law. Relatedly, providing additional tools for proceeds of crime authorities to target the incentives behind certain offences (for example, those relating to slavery-like practices, human trafficking and child sexual abuse material) is likely to be a legitimate objective.

1.219 However, it is not clear that prescribing all of the offences as a 'serious offence' under the 2019 Regulations necessarily achieves the stated objective of preserving the rights of those subjected to 'serious criminal behaviour'. In particular, it is not clear why it is necessary to designate offences under the Copyright Act as 'serious offences' for the purposes of the Act.

1.220 As to proportionality, the statement of compatibility outlines a number of safeguards in the Act to protect individuals whose property is subject to restraint or forfeiture on the basis of a link to a 'serious offence'.^[9] It notes, for example, that a court may make allowances for expenses to be met out of property covered by a restraining order,^[10] or refuse to make an order where it is not in the public interest to do so.^[11] Property will also cease to be 'proceeds' of an offence or an 'instrument' of an offence in certain circumstances, including if it is acquired by a third party for sufficient consideration without the third party knowing, and in circumstances that would not arouse reasonable suspicion, that the property was proceeds of an offence or an instrument of an offence.^[12] Further, a person may seek compensation orders for the proportion of the value of the property they did not derive or realise from the commission of an offence.^[13]

1.221 These safeguards are important and relevant to the proportionality of the measures. However, as noted at paragraph [1.215] above, it appears that a person's real property may be subject to a restraint or forfeiture order under the Act, even where they have been acquitted of a criminal offence, or where a conviction has been quashed. Notwithstanding the safeguards outlined in the statement of compatibility, concerns remain that the powers of restraint and forfeiture in the Act may be exercised, in relation to a 'serious offence', in a manner that may constitute a disproportionate limit on a person's right to privacy.

1.222 The measures extend the operation of the Proceeds of Crime Act 2002 (the Act) to a number of 'serious offences', and enliven restraint and forfeiture powers which may be exercised in relation to real property. In this respect, the measures engage and limit the right to privacy, including the right not to be subject to arbitrary interference with a person's home.

1.223 The Proceeds of Crime Act 2002 would benefit from a full review of the human rights compatibility of the legislation.

1.224 The right to a fair trial encompasses notions of equality in proceedings, the right to a public hearing and the requirement that hearings are conducted by an independent and impartial body. Specific guarantees of the right to a fair trial in criminal proceedings include the presumption of innocence,^[14] the right not to incriminate oneself,^[15] and the guarantee against retrospective criminal laws.^[16]

1.225 The regime established by the Act for the freezing, restraint or forfeiture of property may be considered 'criminal' under international human rights law, and therefore may engage the right to a fair trial. Forfeiture orders may be made against property where a court is satisfied that property is 'proceeds' of an indictable offence or an 'instrument' of one or more serious offences,^[17] and the fact a person has been acquitted of an offence does not affect the court's power to make a forfeiture order.^[18] Additionally, an order need not be based on a finding that a particular person committed any offence.^[19] Rather, a court need only be satisfied that property is 'proceeds' of an indictable offence or an 'instrument' of a serious offence. This appears to entail 'blameworthiness' or 'culpability'. The term 'criminal' has an autonomous meaning in international human rights law, such that even if a penalty or other sanction is classified as civil under domestic law, it may nevertheless be considered criminal for the purposes of international human rights law.^[20] Therefore, as set out above, empowering the freezing, restraint or forfeiture of property may be considered to be imposing a penalty or sanction that is 'criminal' in nature under international human rights law, and therefore the Act, and by expanding the operation of the Act, the 2019 Regulations, may engage and limit the right to a fair trial.

1.226 Noting that the Act was enacted prior to the establishment of the committee, and no statement of compatibility was provided for that legislation, it would be beneficial if the minister were to undertake a detailed assessment of the Act to determine its compatibility with the right to a fair trial and a fair hearing.

1.227 The statement of compatibility does not recognise that the measures may engage and limit the right to a fair trial. It only provides a broad statement that the regulations do not affect civil court procedures applicable to proceedings under the Act, and asserts that the regulations do not engage criminal process rights—on the basis that the Act is civil in nature.^[21]

1.228 Without specific information as to how the safeguards in the Act would ensure that the right to a fair trial would be adequately protected, it is not possible to determine whether the measures in the 2019 Regulations are compatible with that right. In order to fully assess the compatibility of the measures, a full assessment of the Act would be necessary.

1.229 The regime established by the Proceeds of Crime Act 2002 (the Act) for the freezing, restraint or forfeiture of property may engage and limit the right to a fair trial, and extending the provisions in the Act to additional 'serious offences' listed by the 2019 Regulations may also engage this right. This was not addressed in the statement of compatibility.

1.230 The Proceeds of Crime Act 2002 would benefit from a full review of the human rights compatibility of the legislation.

1.231 The committee notes the legal advice on the bill and considers that the Proceeds of Crime Act 2002 would benefit from a full review of the human rights compatibility of the legislation.

[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Proceeds of Crime Regulations 2019 [F2019L01045], Report 6 of 2019; [2019] AUPJCHR 99.

[3] These include offences relating to dangerous weapons, identity crime, and failing to produce certain documents or things in Australian Criminal Intelligence Commission investigations.

[20] See Parliamentary Joint Committee on Human Rights, Guidance note 2: Offence provisions, civil penalties and human rights (December 2014) p. 3.

Australian Parliamentary Joint Committee on Human Rights

Proceeds of Crime Regulations 2019 [F2019l01045] [2019] AUPJCHR 99 (5 December 2019)