Updated on 28 June 2018: The Bill has been passed by the WA Parliament and the amendments to enable the CCC to run unexplained wealth cases are likely to come into effect in a matter of days. For more information click here.
The WA Government has introduced its promised amendments to the Criminal Property Confiscation Act 2000 (WA) (CPCA) to enable the Corruption and Crime Commission (CCC) to investigate and litigate Unexplained Wealth (UEW) matters.
Legislation giving the CCC Unexplained Wealth Powers
The Corruption, Crime and Misconduct and Criminal Property Confiscation Amendment Bill 2017 was introduced to Parliament on 16 August 2017. On 14 September 2017 the Bill passed the Legislative Assembly and was introduced to the Legislative Council and read a second time.
The full text of the Bill, the explanatory memorandum, the second reading speech and a marked up proposed amended version of the Criminal Property Confiscation Act 2000 are all available on the Bill’s Parliamentary homepage.
When using the resources on the above page it should be noted that Part 6 of the CPCA (dealing with objections) has been omitted from the marked up CPCA showing how the CPCA will read after the amendments. This is notwithstanding that the Bill contains no amendments to that Part. I assume this is drafting oversight.
The Minister issued a short press release which remarked:
“It won’t be charged criminals that are called before the CCC to explain their ill-gotten gains; it will be individuals who have put themselves beyond the reach of the police and those who have got their profits without getting their hands dirty.”
Similar remarks have been made about other confiscation powers, including in relation to the CPCA when it was first enacted. The media release also says nothing about whether the CCC will receive additional funding and resources to implement these new powers.
The Minister’s second reading speech notes:
In the 16 years since the commencement of the Criminal Property Confiscation Act, a total of 28 applications for unexplained wealth declarations have been made. However, since 2011, only one application has been made.
The DPP’s power in relation to unexplained wealth and criminal benefits will remain. The DPP will maintain exclusive jurisdiction over investigating or initiating proceedings in relation to crime-used property, crime-derived property and drug trafficker declarations.
Criminal Benefits Declarations
Under the proposed amendments the CCC will also be empowered to apply for Criminal Benefits Declarations under ss 15 and 16 of the CPCA. These powers have also been rarely used in the history of the Act. They have distinct parallels with Pecuniary Penalty Orders made under s 116 Proceeds of Crime Act 2002 (Cth), something I have a fair amount of experience with from my time working with the Commonwealth DPP and the Australian Federal Police.
CCC Freezing of property
The Corruption and Crime Commission will not have the power to freeze property itself. Nor will the Corruption and Crime Commission be allowed to apply (as Police currently do under other streams of the Act) to a Justice of the Peace for a freezing notice. Rather the CCC will have to apply to the appropriate Court (usually the Supreme Court, perhaps in some cases the District Court) for a freezing order under s 43. This has 2 important consequences:
- First the CCC will be expected to give the Court an undertaking as to damages as ‘the price of the order’. ((See Director of Public Prosecutions (WA) v Yeo  WASC 440 at  which was endorsed in Kalbasi v WA  WASC 317 per Mitchell J (as his Honour then was) at .))
- Second the person whose property is frozen under a freezing order is entitled to release of frozen property to meet living, business and legal expenses: see s 45(e) read with the High Court’s decision in Mansfield v DPP (WA). (( HCA 38; 226 CLR 486))
Freezing on crime-used property, crime-derived and drug trafficker ground
I consider the statement in the second reading speech that “The DPP will maintain exclusive jurisdiction over … initiating proceedings in relation to crime-used property, crime-derived property and drug trafficker declarations” is contrary to the text of the proposed amendments. Once amended, s 41(1) of the CPCA will be amended to read:
The DPP or the CCC may apply to the court for a freezing order for property.
Further, s 43(5) which deals with drug trafficker freezing orders will be amended to refer to “the applicant for the freezing order”. Referring back to s 41(1) that clearly includes the CCC. In practice drug trafficker matters closely follow the related criminal proceedings, and it might be thought unlikely that the CCC will want to pursue matters under that stream.
Of greater concern, s 43(8) which deals with freezing orders made on crime-used and crime-derived grounds, will continue to read:
The court may make a freezing order for property if there are reasonable grounds for suspecting that the property is crime-used or crime-derived.
Again, when regard is had to s 41(1) I consider this will empower the Court to make a crime-used or crime-derived freezing order upon an application by the CCC. Whilst it is true that such property can be frozen under a freezing notice issued by a Justice of the Peace upon an application by Police, the CCC and the Police may still wish to utilise this power (which Parliament has been told they won’t have). For instance the CCC may wish to be the agency responding to any objection (rather than the DPP). They may consider that they will ‘fight the matter harder than the DPP’.
The Corruption and Crime Commission will be empowered to make examination orders. At present the DPP must apply to a Court for such an order. In this sense the CCC will not only become the investigator and litigator but also the arbiter of whether people should be examined. The fact that an examination order has been (or is likely about to be) made is a basis upon which the Court can already (and will still after the proposed amendments) be able to make a freezing order.
It will be interesting to see how the Courts approach these applications once the CCC is making the examination orders. The role of the Court in making a freezing order must, as a matter of constitutional legitimacy, be something more than a mere rubber stamp to earlier decision of the executive arm of government (ie the CCC’s decision to make an examination order). ((See generally South Australia v Totani  HCA 39; 242 CLR 1. See in particular the passage of Crennan and Bell JJ’s judgment at ff. And adapting the remarks of Kiefel J at  can it be said that a freezing order made on this basis “can be explained as resulting from the Court’s processes” ?))