An important report on the Criminal Property Confiscation Act 2000 (WA) has just been tabled in the WA Parliament.
It is a report written by a former Supreme Court judge, the Honourable Mr Peter Martino. The report concerns the use of the unexplained wealth (UEW) powers by the WA Corruption and Crime Commission (CCC).
The Martino report on the CCC’s use of unexplained wealth powers should not be confused with the Martin report into the CPCA. The Martin report was written by former Chief Justice Wayne Martin QC, and is a more general and wide ranging review. The Martino report is only concerned with the use of powers by the CCC. It is not concerned with the drug trafficker, crime-used and crime-derived confiscation powers exercised by the DPP.
I was the only independent practising lawyer (and the only defence lawyer) consulted by Mr Martino in the course of his review. Mr Martino also received submissions from a respected group of academics at UWA (led by Professor Natalie Skead), the CCC itself, and the Australian Federal Police.
noted at [3.90] that the CCC have amended their practice to address a longstanding complaint of mine. Specifically the CCC will now ensure that it always inform judges on ex parte hearings of the decision in Kalbasi concerning undertakings as to damages.
considered at [3.96] a submission of mine about whether the CCC should represent “the State” generally. He did not favour hard or fast rules on that question.
Martino Report recommendations
The Martino report says:
- the CCC has been effective in using its powers in the exercise of this function;
- it cannot be assumed that the CCC will continue to be able to exercise its functions under the CPC Act effectively in the future without additional resources;
- the CCC always needs both a Commissioner and an Acting Commissioner;
- it remains appropriate for the CCC to consent to release of frozen property to meet legal expenses under the current law;
- the law should be amended so that the Legal Aid commission have oversight of expenditure of frozen property, rather than the Court;
- Western Australia should not join the national scheme for unexplained wealth at this time, but should keep the scheme under review.
In broad terms, I agree with each of those recommendations. The details will be important in any legislative reform.
Funding the CCC for its Unexplained Wealth function
The Joint Standing Committee on the Corruption and Crime Commission has said, in its covering report, that the CCC should be appropriately funded to undertake its unexplained wealth functions. The Joint Committee appears to be supportive of the CCC’s request for nearly $5m in additional funding per year to pursue unexplained wealth cases on an ongoing basis.
Rewrite of the CPCA generally
I sincerely hope that if the Government picks up the recommendations in the Martino report into unexplained wealth, that at the same time it dusts off the Martin report. The Martin report calls for a complete re-write of the State’s proceeds of crime laws. A re-write would likely include unexplained wealth laws; and the CCC seems the logical agency to run such cases. But the wholesale reforms called for by Wayne Martin are still needed.
Link to the report: Martino Report into the CCC’s Unexplained Wealth powers