OFF THE WIRE
LAWS aimed at confiscating bikie gangs' proceeds of crime have not been used because they are flawed.
Retired District Court judge Alan Moss says the laws are an ineffective weapon in the Government's war against illegal bikie activity because they cannot be fully utilised.
He said police could not even rely on their own criminal intelligence in their search for "unexplained wealth" because it could only be used for the purpose it was obtained.
"Police sought these powers and are naturally frustrated that they cannot be fully utilised and they cannot continue to deploy significant resources in this area if they are unable to achieve results," he says in his review of the Serious and Organised Crime (Unexplained Wealth) Act, tabled in Parliament last week.
In 2009, then Attorney-General Michael Atkinson said the laws would "stop the criminal underworld living the high life they have enjoyed by their illegal profits".
Attorney-General John Rau said he would meet Mr Moss to better understand the potential implications of his report - especially Mr Moss's references to the limitations on the use of criminal intelligence by police.
A spokesman said the report did not destroy the Government's plans for policing organised crime in the state, and that Mr Rau would this week attend a national meeting of attorneys-general to focus on the needs of a national approach to serious and organised crime.
The review is the second blow for the Government's "anti-illegal bikie" package.
The High Court last year ruled parts of its illegal association laws were unconstitutional because, in part, they usurped the court's own judicial functions.
The laws allow the Director of Public Prosecutions and the Crown Solicitor to launch a civil case against anyone whose wealth is "reasonably suspected" to stem from criminal activity, based on information gathered by police.
If the person sued cannot prove property was lawfully acquired, they can be ordered to pay that wealth to the court.
But while the laws are intended to allow access to payments, banking records and criminal intelligence to determine the extent of a person's wealth and the possibility of its criminal sources, a 1993 High Court ruling says the information can only be used for the purpose for which it was gathered - effectively meaning it cannot be used to police unexplained wealth.
Even information gathered under the Road Traffic Act - such as the number of cars registered to related entities - cannot be used because the unexplained wealth laws are civil proceedings and not "law enforcement", Mr Moss says.
And if amendments are passed to allow access to state laws, it is uncertain whether those changes would allow police access to federal information without a proven criminal action, including tax, welfare and company records.
Mr Moss says the powers may also limit the information provided to government bodies, frustrating the police's ability to combat criminal organisations with national reach and representation.
Criminal defence lawyer Craig Caldicott said the legislation was likely to raise the same objections as the Government's association laws.
"There is no fairness here and it is usurping the role of the courts," he said.
Opposition police spokesman David Ridgway said the report showed that, unless Parliament had inadvertently amended the law, there had been a significant oversight.
"Unexplained wealth is a factor in organised crime ... so it is something that needs to be part of a broader strategy for policing." he said.
http://www.adelaidenow.com.au/new-laws-on-bikie-wealth-flawed/story-e6frea6u-1226194966316
The review is the second blow for the Government's "anti-illegal bikie" package.
The High Court last year ruled parts of its illegal association laws were unconstitutional because, in part, they usurped the court's own judicial functions.
The laws allow the Director of Public Prosecutions and the Crown Solicitor to launch a civil case against anyone whose wealth is "reasonably suspected" to stem from criminal activity, based on information gathered by police.
If the person sued cannot prove property was lawfully acquired, they can be ordered to pay that wealth to the court.
But while the laws are intended to allow access to payments, banking records and criminal intelligence to determine the extent of a person's wealth and the possibility of its criminal sources, a 1993 High Court ruling says the information can only be used for the purpose for which it was gathered - effectively meaning it cannot be used to police unexplained wealth.
Even information gathered under the Road Traffic Act - such as the number of cars registered to related entities - cannot be used because the unexplained wealth laws are civil proceedings and not "law enforcement", Mr Moss says.
And if amendments are passed to allow access to state laws, it is uncertain whether those changes would allow police access to federal information without a proven criminal action, including tax, welfare and company records.
Mr Moss says the powers may also limit the information provided to government bodies, frustrating the police's ability to combat criminal organisations with national reach and representation.
Criminal defence lawyer Craig Caldicott said the legislation was likely to raise the same objections as the Government's association laws.
"There is no fairness here and it is usurping the role of the courts," he said.
Opposition police spokesman David Ridgway said the report showed that, unless Parliament had inadvertently amended the law, there had been a significant oversight.
"Unexplained wealth is a factor in organised crime ... so it is something that needs to be part of a broader strategy for policing." he said.
http://www.adelaidenow.com.au/new-laws-on-bikie-wealth-flawed/story-e6frea6u-1226194966316
