Government’s omission of a “critical” clause in the Miscellaneous Provisions (Proceeds of Crime Anti-terrorism) Bill is a “fatal flaw” which makes a mockery of the bill, Independent Senators said yesterday. During debate on the bill, Senator Anthony Vierra said whether by accident or design there was a fatal flaw, a poison pill which made a mockery of the entire exercise.
He said: “Failing to include the critical part of drafting is the equivalent of ‘giving a bligh’ to all those who have engaged in or benefitted from money laundering before the passing of this legislation. “It will give every pre-legislation wrongdoer a get-out-of-jail free card.” The bill, which will make money laundering a stand alone defence, is based on UK legislation.
The UK section reads: “That for the purposes of the definition of criminal property, it is immaterial whether the criminal conduct occurred before or after the passing of the act.” Vierra’s statements came after another Independent Senator, Helen Drayton, raised the issue in her contribution. “On observation, the Government has modelled parts of these amendments on the UK Proceeds of Crime Act 2002, Section 2:41, to amend our law, but it left out what I think is a crucial matter that is also very relevant here,” Drayton said.
“In Section 43, the intent of the amendment is to shift away from having to prove the commission of a specific offence or a specific crime from which criminal property could be obtained,” she added. She said Government had ommitted an important aspect of the UK law with respect to criminal property. “I think this leaves a gaping loophole with respect to the liability of criminal property obtained through criminal conduct prior to this act if it comes into force.
“Now if the Senate omits such a clause I fear we may very well be creating another Section 34 to allow criminals to get away with their illicit gains.”
