INTERVIEW - ABC NEWS RADIO WITH MARIUS BENSON
Friday, 5 February 2010
BENSON: Attorney-General, how will this new law dealing with criminal assets work?
McCLELLAND: Essentially threefold: it's going to increase the risk of being caught, it's going to increase the penalties if someone is involved in organised crime, and it's going to remove the profit motive of engaging in organised crime even in circumstances where you haven't been convicted of an actual crime.
If a court is satisfied on reasonable grounds that there is a suspicion you earned your assets through organised criminal activity, the person will bear the onus of proving that they earned it legitimately otherwise the court may order that assets can be confiscated.
BENSON: Is that a dangerous area for the law to go, if courts suddenly can drop the standard of proof from beyond reasonable doubt, if there's no conviction involved, they think, well you probably did it anyway, so hand over your money?
McCLELLAND: What it's aimed at is those who are the directors of organised crime gangs as it has been notoriously difficult to apprehend those people.
They're the people who direct the operations, but it's usually the street level criminals, the drug pushers and the like who are caught, but those who are actually directing the activities sit back in so-called ivory towers, earning the very, very substantial profits that organised crime can gain.
These laws, unapologetically, will be focused primarily on those characters.
So even in circumstances where the police or the evidence available doesn't satisfy the criminal onus of beyond a reasonable doubt, if prosecutors are able to establish on reasonable grounds that there is a reasonable suspicion that a person earned their assets through organised criminal activity, the burden then shifts to them to prove that they earned those funds or obtained those assets legitimately.
BENSON: Is it the case that, say, you had some drug mule in court and a conviction may or may not be achieved there, but the court decides the money's really going to some more distant Mr Big, even though they're not on trial, their assets might be in jeopardy and might be seized?
McCLELLAND: There are a range of powers, for instance, to the Australian Crime Commission, who have the ability to conduct investigations, to ask questions, to search the asset trail, using a whole range of powers that are also being given to AUSTRAC, to track the movement of funds and ascertain where the connections are.
All this evidence will be available for law enforcement authorities to track the funds to target the person or persons who are gaining the benefit of those funds.
BENSON: People would generally applaud moves that can defeat organised crime but are there any alarm bells ringing in your mind about civil liberties here with the burden of proof being reduced to a lower level?
McCLELLAND: That was a legitimate subject matter of debate both in the Senate committee that examined the Bills and also in the Parliament.
We think there are safeguards, for instance there are measures in place to enable hardship payments to dependents of a person who may be caught in the middle but not necessarily involved in the criminal activity. So there are issues, there's no question about that, but we've developed this model after having undertaken significant research internationally of best practice.
The reality is that all the evidence shows that this is as effective as any other measure because it aims at that other side of the coin, not only the risk of being caught but the side of the coin that removes the tremendous profit incentive that attracts people to engage in organised criminal activity.
BENSON: Robert McClelland, thank you very much.
McCLELLAND: That's my pleasure.
[Ends]