The Corruption and Crime Commission’s (CCC) powers to investigate and litigate unexplained wealth (UEW) matters under the Criminal Property Confiscation Act 2000 (WA) (CPCA) came into effect on 1 September 2018. These powers were granted by the Corruption, Crime and Misconduct and Criminal Property Confiscation Amendment Act 2018 (which amends the CPCA). The updated text of the CPCA is now available for download.
It was said in the relevant Parliamentary debates:
“We are left with a bill that proposes to bring together all the extraordinary defects of the Criminal Property Confiscation Act 2000 with the extraordinary powers of the CCC. … If the original Criminal Property Confiscation Act had been appropriately reviewed and amended and its defects addressed many years ago, perhaps we would be in a very different position right now. Unfortunately, this legislation is still causing serious injustice to innocent people and a serious lack of proportionality for too many people when meting out justice.”Hansard, 13 June 2018 per the Hon Alison Xamon at page 3276 (PDF page 40).
I previously wrote about the amending Bill when it was first introduced back in August 2017.
It has since been confirmed that the consultation on the proposal to give the CCC UEW powers was largely lead by the CCC itself. There was no consultation with the Law Society of WA nor any other non WA Government bodies or agencies. Copies of letters from the Chief Justice, the Chief Judge of the District Court, the Director of Public Prosecutions (DPP) and the Commissioner of WA Police are available here.
Notably the DPP (Ms Amanda Forrester SC, who was then the Acting DPP) expressed the view that “It would be preferable that conferral of unexplained wealth functions on another agency should not be to the exclusion of my Office.” That is to say she advocated for both the CCC and the DPP sharing the UEW powers (which is what in fact has occurred). It is particularly interesting because Ms Forrester’s predecessor (Mr Joseph McGrath SC, now the Hon Justice McGrath) had been of the view that the preferable course was to establish a standalone agency that would pursue all CPCA matters (thereby removing the DPP entirely from having a role in proceeds of crime). ((See report 28 of Joint Standing Committee on the Corruption and Crime Commission entitled Proceeds of crime and unexplained wealth: A role for the Corruption and Crime Commission? at page 27 (PDF 41).))
The Liberal ((Hansard, 12 June 2018 per the Shadow Attorney-General, the Hon Michael Mischin at page 3121 (PDF page 45).)) and National parties ultimately supported the amendments, as did most of the cross-bench. The Greens opposed the amendments. ((Hansard, 12 June 2018 per the Hon Alison Xamon at page 3136 (PDF page 60).))
It has become apparent that the WA Police Organised Crime Squad and the CCC itself have been “scoping” targets in anticipation of the CCC receiving the powers. ((See primarily Hansard, 16 August 2017 per the Attorney-General, the Hon John Quigley MLA at page 2912.))
It was also revealed in the Parliamentary debates that the matters will be handled by a team of 3 full time equivalent employees in the CCC’s Financial Investigations Team (which team also has other responsibilities outside the CPCA). ((Hansard (Uncorrected proof), 28 June 2018 per the Hon Sue Ellery on behalf of the Attorney-General at page 26 (PDF page 28).)) On 2 July 2018 the CCC published a job advertisement for lawyers at various levels saying “Experience in unexplained wealth investigations or litigation would be beneficial but not essential”.
As a result of debate in the Legislative Council, the amendments will be reviewed in 5 years time, pursuant to the new s 140A of the Criminal Property Confiscation Act 2000.
There were no substantial changes to the amending Bill in the course of its 9 month passage through Parliament. The final amendments will empower the CCC itself to compel people to attend for examinations. And the fact that the CCC has done so will provide a basis for the Supreme Court to issue a freezing order. The few upsides are that the Supreme Court may require the CCC to give undertakings as to damages ((See for instance Mansfield v DPP (WA)  HCA 38; 226 CLR 486 at  where the High Court observed “…within the authority conferred by s43 of the Act, the Supreme Court had the power (albeit not the duty) to require the provision of an undertaking and, if this was not offered or was offered in unsatisfactory terms, the Supreme Court was at liberty to refuse the freezing order…”.)); and people affected by such orders will likely be granted recourse to frozen assets to meet legal expenses. ((See generally my previous post about using frozen assets to pay legal fees and living expenses.))