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).

LDP National Conference

This coming Sunday the LDP (Liberal Democratic Party) will celebrate it’s tenth birthday at it’s national conference in Canberra. I’ll be there to mark the occasion as will many other libertarians. If you are interested in knowing more about Australia’s only libertarian political party, it’s policies and progress then look it up on facebook or check out the party website. And if you can make it to Canberra for the day then please feel free to rock up to the event or to join us for the informal dinner and/or drinks on the Saturday night prior.

via alsblog.wordpress.com

Above was written by MH contributor Terje Peterson. Other speakers include Prof. Sinclair Davidson and Sam Kekovich! Although I remain 100% committed my belief that the Liberal Party remains the best avenue to advance small government,  I certainly recognise the fact that not everyone shares this viewpoint, and, the LDP is both ideologically solid and does good work. More details here.

(Posted by TVA).

Progress for Liberal Democrats in UK and Australia

Peter-Whelan Peter Whelan writes on the flow-on effect the success of the UK Liberal Democrats might have in Australia.

The phone calls and emails started coming in about a month ago. “Hey, I’ve just had a call from the Australian Electoral Commission wanting to confirm my membership of the Liberal Democrats!” one said. Another proudly boasted, “The man from the AEC asked if I was a member of the Liberal Democrats and I replied 'Yes, everyone should be!'”.

These calls resulted from the “Test” applied by AEC as to whether a Political party has the minimum 500 members and can be re-registered, or if it is to be de-registered. For many minor parties this can be a nightmare; too many refusals and de-registration automatically follows. That means no party candidates in the upcoming federal election, no further exposure and a lost opportunity of receiving valuable electoral funding. Members have to be committed enough to actually remember that they had joined a political party. In Australia even the major parties have relatively low membership numbers; most people just aren’t that interested, or believe that simple membership is not enough to influence policy or direction.  Also, many people feel the phone contact at their homes from the AEC is an unwanted intrusion into their private lives, especially when membership of a minor party may be seen as a fringe or somewhat abnormal activity.

In the past the Liberal Democrats’ Executives have had complaints along the lines of “Why did you give my private number to them?” Some, who had clearly signed up as members, denied such when questioned by “someone calling from Canberra”. Maybe they thought the call was from ASIO and they were under suspicion of being a member of a terrorist’s cell!

But this time it was all very different!

Not only did the excellent positive response to the AEC’s phone calls result in the Liberal Democratic Party being re-registered, but we even had some members offer themselves as a candidate in the upcoming federal election, whenever it is called!

So, that got me wondering…

Maybe with the Labor Party being in so much trouble with their economic stimulus programs, the average voter is looking for an alternative? The media has exposed the failures of the home insulation program, the rorts involved in the Julia Gillard Memorial School Halls building program and the chopping and changing in handling and processing of illegal immigrants.

Perhaps the average voter has looked at the contradictory statements coming from the Coalition side and found them wanting. No sooner has Barnaby Joyce made a pronouncement about the economy, than Tony Abbott contradicts him. Abbott proposes that the unemployed should be forced into labour camps at the iron ore, oil and gas regions of Western Australia, but then others in the Coalition distance themselves from the plan.

Neither the Liberals nor Nationals can really explain whether they are in favour of population growth for Australia, or for maintaining a stable population, which would mean cutting immigration.

The Conservatives don’t really seem to be landing any blows against the Rudd P.R. machine. The media still refer to Tony Abbott as “the mad monk” and depict his cycling and swimming efforts as those of a latter day Solo Man.

Could it be that with both sides of politics being out of favour, the Liberal Democrats may at last be gaining some traction?

With the Liberal Democratic Party polling so well in the lead up to the UK General Election, could this be the signal for a surge in the vote for the Liberal Democratic Party in Australia? The latest polling indicates more than 35% of voters support the UK Liberal Democrats, with the first past the post system putting them in a strong position to take government, or at least give the established parties a fright.

The Liberal Democrats in Australia are a more libertarian, or classical liberal party, compared to the UK party of the same name, who have policies more akin to those of soft-left, social democrat-style parties. Additionally, the Australian preferential system of voting means that comparisons are not so simple.

However, the spin off for the Australian Liberal Democrats has meant  more exposure for the name in Australian media; the identification factor and increasing awareness of the “Liberal Democratic” brand cannot be ignored.

In the short term that recognition has at least help the (Australian) Liberal Democrats get over the hurdle of re-registration, so when the federal election is called, we say “bring it on”.

Peter has been the National President of the Liberal Democratic Party since 2008. He also the President of the Coalition of Law Abiding Sporting Shooters Inc (CLASS Action) and author of the publication Gun Prohibition in Australia: an expensive mistake.  

Why are many Australians joining the Liberal Democratic Party?

PeterWhelan Peter Whelan explains why people are moving from traditional major parties to the Liberal Democratic Party.

At the LDP’s National Conference in Sydney on Jan 24th, 2010, I spoke with some of our long-time supporters and also had the pleasure of meeting several newer members; they came from diverse backgrounds.  One of the LDP’s newest members had even travelled from Perth to attend.

Many were attending the conference to listen to the words of wisdom from Sir Roger Douglas, ACT (NZ) Member of Parliament. Roger, as Labour Finance Minister, was the originator of “Roger-nomics” which revitalised (some would say “saved”) the NZ economy back in the 1980s.

Others attended to meet with the LDP’s Federal Executive, meet with other LDP members, to participate in the debate over policy issues and to discuss the strategies for the upcoming federal election.

Thinking about the increase in membership, I was prompted to consider the question, “Why are people joining the Liberal Democratic Party?”

The reasons are many and varied. The founders of the LDP in 2001 had been exasperated by the Howard approach of big government, high taxes and restrictions on personal freedoms. The Howard years saw a dramatic increase in public servants, a building boom in Canberra with new offices to house those bureaucrats and the “churning” of the taxes into middle class welfare such as first-home owners’ grants and baby bonuses.

Some had joined the LDP over restrictions in personal freedom such as the anti-smoking laws, or the bans on fireworks. Some farmers had joined after they found that restrictions on land clearing reduced the viability of their farms. Many had never been a member of any political party, but felt the increasing burden of government initiated paperwork and an increasingly complex taxation system. Most people now have to employ a tax consultant or accountant to do their annual tax return!

Many more members had quit the Liberal Party over the extremely unpopular Howard gun laws. Remember how Howard bullied the States and Territories into overseeing a billion dollar gun crushing program and implementing cumbersome and flawed firearms registries? Following those draconian laws, passed by each jurisdiction in 1996/97, each of the Coalition governments was voted out and in NSW the Labor government was returned with an increased majority!

Some from the medical profession had joined, frustrated by a State/Federal medical system which was expensive, poorly administered and was killing many patients it should have been saving!

I then thought about my own reasons for joining the LDP and in helping frame some of their policies; it was a case of “all of the above”.

As an engineer, farmer and business man, I had never been happy with people telling me how to run my life. I have always preferred to make my own decisions and live with the consequences. If I made a mistake, I did not blame others. I learned from the mistake and tried not to do it again.

I resented paying high taxes (among the highest in the world) and seeing those taxes being squandered, simply for expedient, populist political purposes.

While I did not always approve of people who made unwise decisions regarding their safety or lifestyle, I did not consider it my business to intervene or to expect the government to do so. I always had a ‘live and let live’ outlook. I was ready for a political party which would help “keep the government out of my pocket and out of my face”.

Certainly I hated being treated like a criminal because I happened to own some firearms. A party with libertarian principles of small government and low tax was certainly a party that represented my beliefs.

People, who are generally fed up with excessive bureaucracy and government intrusion into their lives, whatever their particular personal issue, are joining the LDP, which they see as the “true liberal” party.

Australians were once proud of their independence and initiative, but are now over-governed, over-taxed and subject to too many arbitrary rules, regulations, laws and by-laws. As a consequence, many have lost the ability to think for themselves, or to look after themselves and their families.

Peter Whelan is the Federal President of the Liberal Democratic Party.