An attempt to give the Australian Federal Police NSW Crime Commission-style powers to undertake proceeds of crime litigation without reference to the Director of Public Prosecutions or even internal lawyers has come under fire from a range of critics, including  the Commonwealth and Victorian DPPs.

The Crimes Legislation Amendment Bill (No.2) 2011, which has passed the House of Representatives and is currently before the Senate, inter alia gives the current power to undertake proceeds of crime litigation — imposing forfeiture orders, penalty orders, wealth examination orders and even the literary proceeds order currently being used against David Hicks — to the Australian Federal Police, whereas it is currently only held by the CDPP. This co-locates the investigative and proceeds of crime functions at the exact moment the NSW Crime Commission’s approach to asset seizure is the subject of an inquiry in that state. The rationale — as discussed in a lengthy consideration of the issue by the Senate’s Legal and Constitutional Affairs Legislation Committee in its report on the bill — is that it will make the administration of the Proceeds of Crime Act more “efficient” and “streamlined”, under a permanent “Criminal Assets Confiscation Taskforce”. As the Law Council noted in its submission and its evidence to the committee, this justification is remarkably hard to debate. As the council’s Helen Donovan told the committee

I am not sure how we can even begin to engage with this sort of opaque assertion. There appears to be a complete unwillingness to speak frankly on the public record about the arrangements under the Act and the purported shortcomings or frustrations of those arrangements (i.e. where the CDPP acts as the gatekeeper and runs all proceedings). As a result, it is not possible to have a discussion about whether those frustrations are legitimate or whether the proposed amendments are the best way or an effective way to address any current shortcomings with the Act and its administration

There’s an emerging pattern here, one noticed by the Law Council. As we saw with the expansion of ASIO’s powers earlier this year, and have seen with the current Cybercrime Bill, the Attorney-General’s portfolio is terrible at explaining why it is so eager to provide new powers to law enforcement, and when challenged to provide a case for handing more powers to enforcement bodies, normally responds with bureaucratic boilerplate about “efficiency” or “uniformity”.

On this issue, though, criticism has come from beyond the normal array of stakeholders. The Law Council made a detailed case against the shift to the AFP, arguing “the involvement of the CDPP in the process offers a valuable safeguard against the misuse or overuse of the powers available under the Act.” These included an objective assessment by an authority separate from the investigating agency, and that prosecutions will be conducted by an officer of the court and the Crown. But the shift drew a strong rebuke from the Victorian DPP, which observed the current Commonwealth framework was similar to the Victorian one, of which:

The strengths, generally, are operational distance and objectivity combined with independent prosecutorial discretion as to whether to make or not make application as the case and evidence warrant. The Victorian scheme has thus had the benefit that a consistent high standard … has been maintained in all court directed proceeds of crime litigation processes. The same observation may be made of the Commonwealth scheme to this point. There would appear to be no reason in principle why the Commonwealth Director of Public Prosecutions ought not remain the sole applicant in such proceedings. The integrity and efficiency of the process is not necessarily enhanced by the provision of concurrent power.

The Commonwealth DPP was, perhaps understandably, more circumspect in complaining about the transfer of power. But it noted that under the Bill, the AFP would handle most proceeds of crime litigation except for a few cases closely related to simultaneous criminal prosecutions (thus, a distinction between “non-conviction” and “conviction” proceeds of crime litigation).

It is the experience of the CDPP that to take the most effective and efficient action in an individual case may involve a combination of non-conviction and conviction-based action. It practice proceedings may be commenced on a non-conviction basis but ultimately be resolved on a conviction basis and vice versa … The Bill does not provide arrangements for determining the matters for which authority will be responsible.

When the CDPP attended the committee’s hearing, its First Deputy Director John Thornton touched on several issues around the shift. But when asked if co-locating the investigative and proceeds of crime functions was a good idea, Thornton retreat via the traditional bureaucrat’s out in such circumstances, saying “it goes back to a question of policy. I don’t think it is really appropriate for me to comment on that”.

Despite a lengthy discussion of the issue, the committee eventually recommended only that the Explanatory Memorandum for the Bill be amended, not the bill itself, to make clearer the rationale for and safeguards of the the amendments, and that the Commonwealth DPP be made a permanent member of the “Criminal Assets Confiscation Taskforce”. The Bill is now set to be waved through the Senate.

Peter Fray

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