Unexplained Wealth Laws in Australia

Abstract

Unexplained wealth laws are a relatively recent development in confiscation law, which require a person who lives beyond their apparent means to justify the legitimacy of their financial circumstances. Unexplained wealth laws are currently in place in the Northern Territory and Western Australia, while Commonwealth provisions recently came into effect. New South Wales has recently announced its intention to introduce laws mirroring the Commonwealth legislation. Similar laws are expected to come into effect shortly in South Australia. Laws of this nature are thought to deter would-be criminals by reducing the profitability of illegal activities and may prevent crime by diminishing offenders' ability to finance their future criminal acts. However, critics argue that the laws infringe on people's right to silence and undermine the presumption of innocence. This paper examines the evolution of unexplained wealth laws in Australia and considers the arguments for and against such provisions, as well as highlighting the need for further research in this area.

This paper considers the scope and impact of unexplained wealth laws in Australia and considers the arguments for and against such provisions. The power of the state to confiscate assets derived from criminal acts is well-accepted in criminal justice and each Australian jurisdiction has legislation governing the confiscation of proceeds of crime (see Bartels 2010). Some Australian jurisdictions have gone further, however, with the introduction of unexplained wealth laws. Laws of this nature place the onus of proof on the individual whose wealth is in dispute. In other words, in jurisdictions with unexplained wealth laws, it is not necessary to demonstrate on the balance of probabilities that the wealth has been obtained by criminal activity, but instead, the state places the onus on an individual to prove that their wealth was acquired by legal means. The paper draws on recent developments in this context, particularly the recent report of the Parliamentary Joint Committee on the Australian Crime Commission (PJC-ACC) on the legislative arrangements to outlaw serious and organised crime groups.

Keywords: unexplained wealth, confiscation, legislation, policy