Australasian biker news
 
AUSTRALASIAN BIKER NEWS

Home Rides  Events Tech Links

New laws are hard to explain

New legislation covering “unexplained wealth” can produce grossly unjust results for indi

New legislation covering “unexplained wealth” can produce grossly unjust results for individuals.

 

APART from some predictable Tasmania Police spin dutifully recorded by the media, new laws that allow the state to seize property from individuals without having to secure a conviction against them have recently come into force.

These laws are yet another nail in the coffin that is marked “the rule of the law’’.

The so called “unexplained wealth’’ laws have become part of the armoury of lazy police forces and compliant governments, which in countries such as Australia, the US and the UK have been stripping away fundamental rights since the “tough on crime” era was born in the 1980s.

Under these laws — championed by the ALP and the Liberals — courts can issue what is called an “unexplained wealth declaration’’.

And what is “unexplained wealth’’? It is said to be the difference between a person’s total wealth and that which is deemed to be “lawfully acquired’’.

A person does not have to have been found guilty of a criminal offence for this declaration to be made, and despite the fact that a person might be bankrupted or otherwise financially devastated by such a declaration being made prosecutors and police only have to show it is more likely than not that a person has unexplained wealth — a low hurdle of proof.

Such a law can produce grossly unjust results. Families lose a roof over their heads, individuals lose their business, and this is all done without any finding of wrongdoing.

Unexplained wealth laws offend the idea that a person should not be punished by the state and the courts without there having been a finding of wrongdoing against him or her.

The justification for these types of laws is that there are criminal gangs with oodles of cash and properties and they have been acquired with the ill-gotten gains from criminal transactions. Politicians and some in the media think that the idea of the presumption of innocence and concepts such as “beyond reasonable doubt” get in the way of the “good guys’’ doing over the “bad guys’’. So let’s make it as easy as possible to trample on fundamental rights.

 

The unexplained wealth laws are contrary to every principle of fairness, and the fact that the politicians and the media can be so blase about their intent and consequences should trouble anyone who cares about the core values of a democracy.

 

As Professor Anthony Gray of the University of Southern Queensland pointed out in a 2012 essay: “Recent years have seen a move towards asset confiscation not connected with the proven commission of a criminal offence. The introduction of unexplained wealth provisions is the latest example. These trends reflect government dissatisfaction with traditional criminal justice processes, including presumption of innocence and the high criminal standard of proof. However, it is not acceptable to change the goal posts because it makes things difficult for the government. The criminal standard of proof is robust for very good reasons, including the stigma associated with suspected criminal activity, and the usually serious consequences that result from criminal behaviour.”

However, it seems that the former Labor attorney-general Brian Wightman, the incumbent Vanessa Goodwin and many Tasmanian MPs have simply decided that the rule of law is something that can be dispensed with in order to satiate the power-grabbing instincts of police and the shallow reporting of the media on criminal justice issues.

Do not think for a moment that these new laws are restricted to so-called bikie gangs. Last week there were reports that in Melbourne police have been seizing the coins and notes from those on Melbourne streets who are seeking help because they are homeless or unwell.

Because begging is illegal the “gains’’ made by these individuals are unexplained wealth and can be seized by the state.

The unexplained wealth laws are contrary to every principle of fairness, and the fact that the politicians and the media can be so blase about their intent and consequences should trouble anyone who cares about the core values of a democracy.

In the same vein are the proposed laws of the Hodgman Government that will, if left in their current state, strike a substantial blow for freedom of speech and freedom of association in Tasmania.

The workplace protest laws are so poorly drafted that, as Greg Melick, SC, observed last week, there “is a high risk of capturing individuals who would not in any sense be characterised as ‘extremist’”.

And then there are the notorious safety checks on “working with children” laws, which all political parties in Tasmania supported last year and which allow the refusal of registration to work with children even if an individual was charged with an offence and was acquitted by a court!

See the trend here? Forget the presumption of innocence and the right to fairness. Let us give in to the screeching headlines of the tabloids, the moral panic merchants and the state’s desire for control over lives.

Of course, if Tasmania took human rights seriously, such egregious breaches would be more difficult for the Parliament to foist upon the public. But of course we don’t do that, do we? Democracy is the loser.

 

Greg Barns is a Hobart-based human rights lawyer.

Back