Federal Justice Minister Michael Keenan has foreshadowed tougher national unexplained wealth laws. These laws reverse the onus of proof. Where there is a “reasonable suspicion” that an individual has engaged in serious criminal activity, a court can order that person’s assets to be seized,unless the person can show that the wealth was acquired lawfully.These laws have been justified as giving governments extra powers to tackle organised crime, especially bikie gangs.
RoLIA is supportive of proper measures to counter organised crime. But there are a number of rule of law issues with such laws:First, they are not intended to apply equally, but to target certain people. The rule of law requires that everyone be treated equally under law.
Secondly, insofar as they give investigative agencies more extensive powers over individuals, they continue the creep of executive power.
And thirdly, as a number of High Court decisions have demonstrated, they can be drafted in a way that makes the courts subject to the demands of investigative agencies leaving no room for judicial discretion and oversight, which is fundamental to the separation of powers.
