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Thursday, 4 February 2010
Page: 459


The CHAIRMAN (12:03 PM) —I wish to make the following statement. Government amendment (3) on sheet AF230 has been circulated as a request for the reasons given in the circulated statements. The amendment would enable payments to be made out of the confiscated assets account to a broader class of persons than may currently make claims. The confiscated assets account established under the Proceeds of Crime Act 2002 is a special account under section 21 of the Financial Management and Accountability Act 1997. Recovered proceeds of crime are paid into the account and payments from it may not exceed amounts paid into it by the affected person. The amendment would allow dependants of the affected person to make claims on the money, but payments are made only if a court orders them. The possible effect on the appropriation is therefore only indirect.

In the past, the Senate has regarded only a very direct effect on an appropriation as an increase in a charge or burden on the people within the meaning of section 3 of the Constitution. It is also apparent that the amendment will not increase the total amount of money available to be paid to claimants. The precedents of the Senate do not support the amendment being moved as a request and, therefore, it will be treated as an amendment. With the concurrence of the committee, the statement of reasons in relation to this matter will be incorporated in Hansard. There being no objection, it is so ordered.

The document read as follows—

Parliamentary Counsel

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

Statement of reasons: why certain amendments should be moved as requests

Section 53 of the Constitution is as follows:

Powers of the Houses in respect of legislation

53. Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law.

The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.

The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.

The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications.

Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

Amendment (3)

The effect of this amendment is to extend the purposes in respect of which money may be debited from a special account. This may increase the amount that may be paid from the Confiscated Assets Account established by section 295 of the Proceeds of Crime Act 2002, with those payments being made out of the Consolidated Revenue Fund under the standing appropriation in section 21 of the Financial Management and Accountability Act 1997.

It is covered by section 53 because:

(a)   laws which cause money to be expended out of a standing appropriation are a charge or burden on the people (within the meaning of the third paragraph of section 53); and

(b)   it is likely that the amendment will have the effect of increasing the amount that may be paid out of a standing appropriation and therefore of increasing such a proposed charge or burden, which is prevented by the third paragraph of section 53.

Statement by the Clerk of the Senate pursuant to the order of the Senate of 26 June 2000

Amendment (3)

This amendment provides for compensation payments to be made to eligible dependants of persons subject to unexplained wealth orders. These payments would be made from the Confiscated Assets Account (CAA) established by the Proceeds of Crime Act 2002. The CAA is a special account by virtue of section 21 of the Financial Management and Accountability Act 1997. All proceeds recovered under the Proceeds of Crime Act 2002 are paid into the CAA.

Although this amendment enables payments to be made to a broader class of people (the dependants), there is no increased appropriation required from the CAA. Dependants can only claim an amount equal to or less than that paid by the person subject to the unexplained wealth order and held in the CAA.

Further, a dependant must make application for a court order when making a claim of compensation. The court then orders the Commonwealth to make the required compensation payment from the CAA.

The Senate has long held the view that only a very direct effect on an appropriation is regarded as an increase in a charge or burden (Odgers’ Australian Senate Practice, 12th edition, p. 297). Possible expenditure from the CAA on the basis of possible court orders in response to applications by dependants does not meet the test of directness. In any case, nothing in the amendment would have the effect of increasing the total amount available under the appropriation (which is limited by the amount of proceeds recovered). Amending a bill to change the allocation of proposed expenditure and the purposes for which money is to be appropriated has long been considered to be within the power of the Senate, provided that the total proposed (or available) expenditure is not increased. Moreover, it could be argued that, given that the appropriation is ‘self-funded’ from the proceeds of crime, there is indeed no actual charge or burden on the people.

For these reasons the amendments would not be regarded as requests under the precedents of the Senate.

CRIMES LEGISLATION AMENDMENT (SERIOUS AND ORGANISED CRIME) BILL 2009

Bill—by leave—taken as a whole.