A modern day witch hunt: how unexplained wealth laws victimise the innocent

Pictured: how unexplained wealth laws combat organised crime

Pictured: how unexplained wealth laws combat organised crime

We like to think of ourselves as superior to our ancestors, but as I look at Australia’s unexplained wealth laws I venture to disagree.  The laws have empowered police to confiscate the property of the innocent without a trial, and they have been introduced in every State, every Territory and federally. Indeed, in New South Wales, the Coalition is promising to increase their scope in the run up to the election. Punishment without a trial is a process that is equivalent to a medieval witch hunt.

All of your property—gone. Unexplained wealth laws empower law enforcement officials to permanently confiscate your property without being convicted of a crime. If you’re suspected of committing a minor criminal offence, the police are empowered to confiscate everything you own. In Queensland, it can be as trivial as recreational marijuana possession. There is no need to even accuse you of having committed a crime in obtaining the property; no need to charge you with a crime; no need to bring your trial; and no need to prove you guilty. Punishment without a trial or due process is the agenda. It’s up to you to defend yourself in Court against the allegation that you obtained the property unlawfully.

Absurd law, absurd results. In one instance, recreational marijuana possession was in fact used as the pretext for the confiscation by police of almost $600,000.00 of cash belonging to one man, Mr Henderson, and his siblings in 2002. [1] Mr Henderson proved in Court that he obtained that money legitimately from the sale of a family heirloom belonging to himself and his siblings. But the money was confiscated anyway, for the absurd reason that he could not prove that the family heirloom was legally acquired by his now-dead parents. Police did not offer any other explanation as to how the property was acquired. They did not produce a victim claiming the heirloom was his, or even a police report. They did not allege that Mr Henderson or his property acquired the property illegally. They weren’t required to. Mr Henderson was a member of the vulnerable underclass which unexplained wealth laws seem to target and victimise.

That money sure looks suspicious. Unexplained wealth laws also empower the police to permanently confiscate specific items of your property on the suspicion that it was acquired illegally. Again, the onus is on you to get it back.

Carrying cash is a crime? Thus in another case in Western Australia, police targeted a man, Mr Morris, for carrying around his life savings of over $100,000.00 in cash in a plastic bag.[2] It was suspicious. So when police pulled him over while he was driving back in 2011, they took the cash. He kept his savings in cash because he was suspicious of banks; he had lost his meagre savings due to a bank failure in the 80’s. He was planning to use the money purchase and open a fitness training centre. Police did not allege that the man had committed a crime of any kind. They simply suggested that he had obtained the bag of money from a friend. This single suggestion was the entirety of the prosecution case. Mind, they had no proof of it. No witness came to the stand in their favour. Nor did they offer any evidence the man’s friend had gotten the money illegally.  Mr Morris got his money back, but the case took two years to be disposed of—a punishment in time and money in and of itself. If Mr Morris had been subjected to the traditional process of criminal procedure, this would never have happened at all. The police could not and did not charge him with the “crime” of carrying around a bag of money. But with unexplained wealth laws, they confiscated it anyway. This is not justice.

No evidence of effectiveness. Witch hunters could only practise their trade because witchcraft was popularly thought to be real and dangerous. Similarly, our modern day law enforcement officials confiscate on the premise that they are combating organised crime. The dangers of organised crime are no superstition, of course. But then again, neither were the diseases witches pretended to cure. And much as peasants never asked witch hunters for evidence, few people seem to ask for any evidence that these laws do anything to combat organised crime. There’s a reason for that. There is none. Unexplained wealth laws are designed to catch people who haven’t been proven guilty of a crime. That does nothing to assist police in their investigation of actual crimes.

A wider net catches more innocent people. It is more likely than not that some of the people caught by police will be innocent. Some indeed might be guilty of something, but if they are subject to unexplained wealth laws then we often cannot be sure what they are guilty of, if anything. With unexplained wealth orders, there need be no convictions or sentences, nor even any reported crimes to justify a confiscation. The accused and the prosecution can simply consent to an order being made against the accused for his property to be confiscated. Nobody knows what they are accused of or whether the punishment is in proportion to the crime.

Disproportionate, draconian punishments. We should not assume that the punishment is just simply because the accused did not contest it. The accused may not have had the funds or the time to contest the accusations against him. While he may have been guilty of some offence that might justify confiscating the proceeds of crime, it does not follow that law enforcement officials should be empowered to take everything that person owns. The punishment has to match the crime. The typical punishment for a marijuana user is a counselling session or a small fine—not the confiscation of all of their property.

A pointless, hysterical distraction from punishing real criminals. Finger pointing hysteria may sweep up a lot of innocent people together with the guilty. But there’s no evidence that organised crime is likely to suffer as a result. Indeed, unexplained wealth proceedings will distract police from the actual task of investigating real crimes and real criminals. They will be too busy investigating loosely hypothetical possibilities that might warrant a confiscation order to worry about any real criminals. Therein, I suspect, lies the appeal. Police and politicians can look like they are doing something about crime without doing much at all.

Reversing the presumption of innocence undermines our liberal society. The Coalition like to market themselves as tough on crime, but unexplained wealth laws punish suspects, not proven criminals. Punishing suspects means punishing more innocent people. The traditional, conservative view of law enforcement sees the presumption of innocence as the cornerstone and a distinguishing feature of the English legal system. It is as old as the English Treaty of Magna Carta:

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

Or as famous English jurist Sir William Blackstone put it:

“It is better that ten guilty persons escape than that one innocent suffer.”

People must have confidence that the legal system will not unfairly target or persecute them. With the introduction of unexplained wealth laws, the Coalition, the ALP and the Greens have renounced their commitment to this fundamental principle of liberal society. They have undermined a core, embedded principle of our legal system and our society. This is a remarkable and troubling tri-partisan consensus indeed. The only politician to have spoken against these laws to date is David Leyonjhelm of the Liberal Democrats. Leyonjhelm has separately pointed out that reversing the presumption of innocence is tantamount to accepting the “just world fallacy”:

The just-world fallacy holds that a person’s actions always result in fair and fit consequences, and it exists because people are uncomfortable accepting [that] suffering is random and that sometimes bad things happen for no reason at all. It is common to believe people must have done something to deserve what they get, including being accused of a crime. The argument goes: if bad things only happen to those who deserve them and I am a good person, then I can be sure nothing bad will ever happen to me.”

Unfortunately, the world is not fair, and law enforcement officials are not perfect. They are fallible human beings. They are capable of making mistakes. They are capable of persecution, not merely prosecution. Judging people guilty before proven innocent is tantamount to a sacrilegious worship of law enforcement officials as nigh-infallible human beings. Unexplained wealth laws turn them into the witch finders of our modern day witch hunts.

Revenue raising gone mad. Add to the mix the fact that confiscations generate revenue for the government and you will see a dangerous combination at work. Police who return more money towards government coffers than they put in will naturally be in line for more funding. Politicians will be more inclined to give it to them. It is not hard to see how law enforcement officials might be more inclined to prosecute law abiding citizens when their pay packet is on the line. That’s the experience in the United States, at any rate, where law enforcement officials get every penny they confiscate back into their own local police department. Then they spend it on holidays, nice cars and other like perks, as the Institute for Justice, an American civil liberties law firm, has recorded. If law enforcement officials get their way we could witness much the same here. It is a comfortable revenue stream indeed.

Would you do it to your neighbour? A final thought. If you took your neighbour’s property and refused to return it to him, without even telling him why or caring to prove that he acquired the property illegally, what would that make you? A thief. It’s one thing to confiscate the proven proceeds of crime, but unexplained wealth laws are something else entirely.

Vladimir Vinokurov is a solicitor and a deputy Victorian State director of the Australian Taxpayers’ Alliance. The views expressed here are his own.

Vladimir Vinokurov is a solicitor and a deputy Victorian State director of the Australian Taxpayers’ Alliance. The views expressed here are his own.

[1] See Henderson v Queensland [2014] HCA 52.

[2] See Director of Public Prosecutions v Morris [2010] WADC 148. (Note: you will need access to a subscription service such as LexisNexis to access this decision).

Labor’s just a bit rich moment

It appears Labor's election ad cycle has hit a snag with the interesting revelation that its key advertisement attacking Tony Abbott and the Coaltion is driven by an actress who apparently refused to pay $15 dollars to a family operated small business for delivery of expensive hand made spanish tiles.

It has been confirmed that Labor used actors for their most recent ad. However it would be useful if the goverments small business minister would explain whether he endorses the position of the actress in this ad, who refused to pay $15 delivery for expensive hand made spanish tiles.

In a time when small business is expected to tighten their belts under the odious regulation and increased taxation imposed on them by this government, it seems a bit rich that an eastern suburbs housewife would be considered by "ALP Strategists" as representative of the broader Australian community.

Perhaps Labor instead of trying to run teflon coated television campaigns whose actors don't truly reflect real Australia, should do a bit of their own 'renovating' in relation to their communications strategy.

Apparently all that keeps the 'actress' going is the thought that

"Somewhere in a factory in Sydney is a dishwasher with my name on it. A stylish stainless steel dishwasher that only makes 42 decibels of noise".

Just a bit rich Labor, Just a bit rich!

 

UPDATE:

Andrew Bolt's blog has more:

New Face of the Working Class

Timothy W. Humphries is Assistant Managing Editor of Menzies House

MUST READ: A Health Warning For Liberals

Medicine is pressured by a radical socialist transformation

Medicine is pressured by a radical socialist transformation. Some of this is top down. Much of it is bottom up, writes Dr Grant N Ross

For
2 years I was the Melbourne University Liberal Club’s token doctor.
Turning up late, or never, I would always be out of kilter with JSM,
political theories and fights of the day and somewhat under the
impression that Kroger was a kind of cheese. 
Luckily,
being a stereotype got me over the line.

I
would like to redeem my standing by attempting to write about the
direction of health under Labor and the alternative policy direction
the Liberal Party should choose when in Government.

I
feel that there is a need f
or a Liberal establishment to take note of
the direction of health under Roxon and Plibersek and to hear the
story I am about to tell about the pressures within medicine that
will come to change the way doctors do politics for the next 20
years. All is not well, and I want to tell you why.

As
we speak, Medicine is pressured by a radical socialist
transformation. 
Some
of this is top down. Much of it is bottom up.

The Top Down 

 From
the top down, there have been a series of reforms that:


  • Create
    a greater role for government in health


  • Are
    mostly anti-doctor


  • Occurred
    without significant consultation with the medical profession


  • Involved
    the creation of enormous layers of bureaucracy to centrally manage
    an existing private industry


  • Prioritised
    special interests and unions rather than the front line service
    deliveries

Such
reforms include the creation of many different councils to
micromanage various health care aims instead of directly funding
practitioners; and by doing so orchestrate a transfer of power away
from practitioners and patients towards bureaucrats and their
interests.

A
quick list of the agencies and bureaucracies created by federal Labor
include the following:

  • Australian
    commission on safety and quality of healthcare

  • National
    Health performance authority

  • Independent
    Hospital Pricing Authority

  • The
    Administrator and funding body

  • Medicare
    Locals

  • Australian
    Medical Locals Network

  • Australian
    national preventative health agency

  • Local
    Hospital Networks

  • Health
    Workforce Australia

  • Aged
    Care Reform Implementation Council

  • Mental
    Health Commission

  • Aged
    Care Financing Authority

There
are three cardinal reforms by Labor that have made things worse in
health; national registration, Prescribing and Medicare Locals.

National
Registration

Since
2010 we have had the imposition of a massive tax on doctors by way of
a National Registration reform by Nicola Roxon.
Previously, doctors were registered to a state body but are now
registered to the Australian Health Practitioners Registration
Agency; a centralised national authority.

AHPRA,
formed by Labor to ‘facilitate’ national registration, imposes a
$680 ‘Doctor Tax’ on doctors every year; much higher than
previously imposed. The agency’s role, it seems, is to run a police
check once a year, keep names on a register and then deal with a
doctor if they do something wrong by threatening or taking away the
legal right to practice Medicine.

Whilst
most doctors agree on the need for professional regulation, nobody
accepted the AHPRA model being imposed in the face of a functioning
previous system.

There
is an overwhelming sentiment among the medical community that the
AHPRA reforms are decidedly anti-doctor. Firstly, they removed
semi-autonomy from the previous state based QUANGOs. Secondly, the
AHPRA came about against the wishes of the AMA and the medical
profession at large. Thirdly, doctors have to pay extraordinarily
higher registration fees. Fourthly, AHPRA lumps doctors together with
other health professionals in an overt breach of professional
autonomy:


Ahpra

Footnote I – The Health Practitioner Regulation National Law came into effect in 2010. Whilst it was a COAG agreement, AHPRA was a cornerstone commitment of Labor and driven largely by their political agenda and under mostly government influence.

What
is most worrying is that the registration reforms are a direct step
towards the complete Federal take over of health; via monopolising
the licensing of ALL health professionals in the country to one
federally controlled agency. This should be interpreted as a step
towards government socialisation of the entire health workforce. 

Nobody
is quite sure what will happen in the future with AHPRA. I would look
at it as a dysfunctional way of registering doctors and a target for
reform under a Liberal government.

Prescribing
under Labor

The
Labor reforms have particularly offended the medical profession by
allowing nurses and other non-doctors to prescribe medications.
Prescribing has long been the privilege of the physician, a deeply
difficult and precise business and the Government have legislated for
non doctors to prescribe dangerous medications.

Doctors
still do not agree with this. Below is an example of a lethal
medication that should not be given to people in a range of
circumstances ranging from addiction to intra cranial conditions that
is available from a nurse with no medical training. 

DHA

Footnote II – http://www.ahpra.gov.au accessed 6/11/2012
  
Whilst
nobody would wish the loss of political capital by enabling more
practitioners to prescribe, a government should make a principled
stand on prescribing and give that right exclusivity to those who
lead the health system; doctors. Put simply, do not politicize
opiates; morphine is a drug, not an entitlement. We are all better
off without this gray zone.

General
Practice and the Medicare Locals

Medicare
Locals are essentially the creation of large bureaucracies all across
Australia to control the delivery of General Practice services.
Marking the greatest shift of power away from the functioning private
sector to yet more bureaucrats, these organizations claim to
‘coordinate resources’, ‘identify gaps in access’ and other
nebulous imperatives.

They
are really about creating a centralized bureaucracy, more removed
from front line services, to control the allocation of General
Practice visits. Most of these agencies will be run by non-doctors
with political agendas. This
WILL
redirect front line funding.

Whilst
most left leaning elitists and pundits would label a move against
Medicare Locals as ‘protectionism’ for doctors, it should be a
Liberal priority for several reasons.

Fee
for service, rather than centralized allocation, is the most
efficient form of funding for primary care. Doctors alone deliver the
vast majority of primary care via their minute to minute labor.
Direct funding is clearly superior.

Secondly,
reinforcing private practice builds trust within the medical
profession and empowers doctors to deliver good care for their
patients.

Thirdly,
it builds on the only model that can safely deliver cost effective
health care in a flexible and dynamic way. There is pragmatism within
the medical profession that is unrivaled in history. Pragmatism
requires individual liberty. It is the antithesis of bureaucracy.

Doctors
should be allowed to govern how they arrange their practice and the
market is the best way to ensure that each patient finds the doctor
they prefer. We all know that we would prefer to choose our doctor
when we need them; not when the government tells us.

I
have written about three big players in the health reform agenda of
the last 5 years. National Registration and the step towards
socialist health system, widening of prescribing rights and finally
the complete government takeover of General Practice. These are just
a few example of the top down socialist pressures on health that I
have noticed. 
Alas,
they are not the most worrying change ahead of us.

Luckily
for us, Peter Dutton, Shadow Minister for Health, has already
demonstrated his capacity for reform by pledging to scrap the
Medicare Locals and GP super clinics.

Dutton
is an ex policemen, successful businessman, ex-Minister in the Howard
Government and assistant treasurer to the great Peter Costello. He is
clearly a man who understands health and has a distinct policy vision
to restore the health system to a position of strength, rather than
interference and bureaucratization. I believe he will be warmly
welcomed by the medical community and be one of the best advocates
for the restoration of a sensible health system.

The Bottom Up 

Dutton

I
have spoken about some of the top down pressures in a socialist
direction on the health system. I would like to talk briefly about
some of the pressures from the bottom up, that only a doctor can see,
that are still pertinent to the Liberal agenda.

If
the fantasia reforms of the Roxon/Plibersek era are anything to lose
sleep over, they are nothing on the bottom up forces plaguing
medicine at a much more sinister level.

Since
my entry into medicine as a first year student in 2006, the values
underpinning medicine have been rampantly veering towards the left.
The pressures mounting from the bottom, aka medical school
environments, are horrendously aligned with ALP and Greens stigmata.
For those who thought that foaming at the mouth socialism and
bureaucratic elitism were limited to the confines of the Arts
departments, you are wrong.

The
Medical schools themselves have pursued a long march style reform
into the medical degree; especially in the selection of candidates.
Traditionally, school leavers were selected based on ENTER/ATAR score
and the Undergraduate Medical Admissions Tests. No test is perfect,
but the principle was that admission was based on objective academic
capacity; with a view to selecting bright school leavers (whether
advantaged or otherwise).

This
principle cemented medicine as being about academic capacity,
something worth its salt in any market, rather than ‘social
equity’. This is the right way for things to be.

Nowadays,
courses almost universally select via interview. You can dress up how
‘official’ and ‘standardized’ your interviews are, but they
remain the quintessence of subjective selection. That is the purpose
of interviews. They are effectively a mechanism to allow people to
form a personal opinion on a candidate. And exercise bias. 

Adelaideu

On
a background of the inherent socialist tendencies of education at
both secondary and tertiary level, the reforms to selection have
outright enabled the medical schools to pursue a political agenda
that aims to expand the role of government in healthcare, involve
medicine into a nexus of government social equality agendas and
further the promotion of minority special interests to any particular
degree. This is the definition of long-marching.


Wollong

The
results of these efforts are now coming to fruition. Medicine is
becoming overtaken by special interest group after special interest
group, all vying to dictate the rules of medical practice and
employment, values and principles in an ever growing mountain of
elitist control. The effects of this can be seen via organizations
such as the Australian Medical Students Association, the Post
Graduate Medical Council of Victoria and even the Medical Journal of
Australia and the Australian Medical Association; a nexus of
bureaucratic woe:

Amsa

Footnote III – http://www.amsa.org.au

These
organizations are replete with bureaucratic choke holds and
indecisive post modern ‘collaboration tactics. The result,
obviously, is what we have seen under Kevin Rudd: Power from the
people to their overlords in an ever growing unholy alliance of
bureaucrats, red tape and pathetic backyard politicians who would
rather do anything to promote themselves rather than a good idea. It
promotes ‘sellout politics’ and betrays the individuals who
together make medicine what it is and what gives individuals the
right to be free in this country. 
So
long as this framework persists, doctors will be worse off and
patients will be worse off. 

 At
the moment, the AMA can be proud of the leadership it has had.
Brendan Nelson went on to become Liberal Party Leader. Rosanna
Capolingua was clearly Liberal, Michael Wooldridge kept General
Practice sustainable and independent. Steve Hambleton, current AMA
leader, stands for sensible restraint and genuinely aims to protect
autonomy for doctors. We have been lucky. But I am not so sure about
our future. Just look at what the ever growing Australian Medical
Association calls for on Climate Change:

Amsa2

Footnote IV – http://www.amsa.org.au/press-release/20120703-amsa-calls-for-leadership-on-climate-change/
  • Australian
    Medical Student Association


    Health-climate-change

    Footnote V – Australian Medical Students 2010 Policy Document Climate Change and Health see website http://www.amsa.org.au
  • The
    Australian Medical Association’s is little better than the student
    body in this regard:
     
Ama

Footnote VI – http://ama.com.au/node/4442

I
think I have made my case. 
If
anybody in the Coalition did have a silver bullet to stop the long
march, they’d immediately be preselected for a golden safe seat. I
am not that man.

However,
if we were to theoretically look at reversing the political bias
pressuring medicine in Australia, I would start with reforms that
target medical selection, medical training, the de-bureaucratisation
of medical registration at the junior level and aim to move the
governance of medical training away from University bureaucrats and
elitist back to grassroots doctor groups.

This
would help. 
There
is an argument for such change on the basis that it restores
efficiency and principles of autonomy to the medical profession and
by extension of that, to patients. It would be one hell of an effort,
but I honestly do not believe it to be beyond an Abbott government to
achieve in some capacity.

The
other issues are perennial for Liberals; especially for those of us
who have campaigned on campus. The fight against bureaucrats, against
elitists and to genuinely reform education in this country in the way
that David Cameron is trying in England. Perhaps some of the above
changes could be caught up in a commission of audit. I would like to
see that. But I don’t know. I am not a politician.

Conclusion

As
a doctor, I naturally bring more of a background of social sciences
and welfare to the Liberal table than I do tax reform and economics.

However, there is a need for a Liberal establishment to take note of
the direction of health reform that the Roxon and Plibersek ministry
has imposed on health and a need to identify them as inefficient,
retrograde, centralist and to be removed as needed. Equally important
is the message I would like to impart about the need to think about
what is needed to prevent the medical establishment being long
marched into foot soldiers for the ALP.

Just
remember, health accounts for 12-17% of spending and employs 11% of
all Australians. That is one hell of a voter base to lose to the
left.

Peter
Dutton has a lot to contribute to health in the next Liberal
Government. Autonomy, efficiency and restraint will serve our country
well. Similarly, I encourage young Liberals in rising positions of
leadership to consider the principles of a sound health system as
they develop their policy directions.

The electorate expect a good
health system and we have no excuse for leaving ourselves weak on
this front from a simple lack of knowledge.

Dr
Grant N Ross MBBS B.Med Sci is a medical practitioner and graduate of
Melbourne University.

 

Footnotes

Footnote
I – The Health Practitioner Regulation National Law came into effect
in 2010. Whilst it was a COAG agreement, AHPRA was a cornerstone
commitment of Labor and driven largely by their political agenda and
under mostly government influence.

Footnote
II –
http://www.ahpra.gov.au/
accessed
6/11/2012

Footnote
III –
http://www.amsa.org.au/
see About AMSA accessed 6/11/2012

Footnote
IV –
http://www.amsa.org.au/press-release/20120703-amsa-calls-for-leadership-on-climate-change/

Footnote
V – Australian Medical Students 2010 Policy Document Climate Change
and Health see website
www.amsa.org.au

Footnote
VI –
http://ama.com.au/node/4442