Cybercrime

FIJI: Introduction of Unexplained Wealth Order under Proceeds of Crime Act

Recent amendments to the Proceeds of Crime Act 1997have introduced new unexplained wealth provisions. The amendments contained in the Proceeds of Crime (Amendment) Decree (No. 61 of 2012) (here) commenced in May 2013.


Under the new “Unexplained Wealth” provisions in Part VB, the Director of Public Prosecutions can make an application to Court for an unexplained wealth declaration. The Court will make an assessment, based on the criteria and considerations outlined in the Act, of the value of a person’s lawfully acquired wealth the value of their total wealth. If the subject of the application is unable to provide a satisfactory explanation of a difference between their lawfully acquired wealth and total wealth, the Court will make an unexplained wealth declaration. The declaration will specify the Court’s assessed value of the unexplained wealth and order the respondent to pay this amount to a Forfeited Assets Fund (established under the Act).


Under the unexplained wealth provisions, the burden of proof in an application rests with the respondent, to prove that wealth was lawfully obtained in order to keep it, rather than the DPP having to establish the wealth was obtained unlawfully in order to forfeit it.   Section 71K (2) provides that any property, service, advantage or benefit that is a constituent of the respondent’s total wealth is presumed not to have been lawfully acquired unless the respondent establishes the contrary.


Forfeiture under the unexplained wealth provisions is therefore independent of any criminal proceedings or proof of any predicate criminal offence.

Such confiscation measures are part of the Financial Action Task Force (FATF) International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation (FATF Recommendations) (2012). Recommendation 4 (“Confiscation and provisional measures”) sets out that countries should consider adopting measures that allow proceeds to be confiscated without requiring a criminal conviction (non-conviction based confiscation), or which require an offender to demonstrate the lawful origin of the property alleged to be liable to confiscation.


A press release is available here; and a presentation by the Director Fiji’s Financial Intelligence Unit (FIU) providing a detailed explanation of the unexplained wealth provisions is available here.


PAPUA NEW GUINEA: Proposal for Independent Commission against Corruption; new OPP serious corruption and dishonesty unit


The proposed establishment of an Independent Commission Against Corruption (ICAC) has been progressed throughout 2013. Public consultation has been completed regarding the legal framework and practical operations of this body. The PNG Government is now to finalise legislation to create an ICAC. This requires passage of a Constitutional amendment and an organic law through Parliament.

 

Establishment of an anti-corruption agency (ACA) is proposed under the PNG National Anti-Corruption Strategy (here) and the supporting National Anti-Corruption Plan of Action 2012 – 2015. The Strategy was adopted by Parliament in November 2011 and provides a roadmap for the actions which PNG proposes to take to tackle corruption. The Plan of Action was published in April 2013, and designed to support implementation of the Strategy.

 

As part of public consultation in relation to the proposed ICAC, the National Anti-Corruption Strategy Technical Working Group released a public discussion paper – Development of Papua New Guinea’s Proposed Anti-Corruption Agency – in May 2013 (here). The discussion paper raises proposals and questions for public input focusing on the legislative framework for PNG’s ICAC. The discussion paper considers international best practice for ACA development. The best practice principles are used as the basis for analysis of the current draft ICAC legislation, and what may be most appropriate for PNG’s circumstances.

 

The creation of a unit within the PNG Office of the Public Prosecutor, to be tasked with prosecution of alleged dishonesty and corruption offences, was recently announced (story here). The serious corruption and dishonest unit is intended to deal with offences including misappropriation and official corruption as well as continue the prosecution of matters that come under the scrutiny of the Taskforce Sweep*. The unit will be headed by a senior state prosecutor and supported by state prosecutors, legal officers and support staff; and will work closely with the OPP’s proceeds of crime international crime cooperation unit.

 

*Taskforce Sweep is a multi-agency task force which was established by the PNG Government National Executive Council in 2011. The taskforce was tasked with investigating corruption, in particular misuse of public funds in government departments. The taskforce has been extended until a permanent ICAC is established. Stories regarding Taskforce Sweep are available here, here and here.


TONGA: Legislation for new anti-corruption framework


Three proposed Bills are being considered by Parliament:

1. Good Governance Commission Bill 2012
2. Commissioner for Public Relations (Amendment) Bill and
3. Anti-Corruption Commission (Amendment) Bill.

 

The Good Governance Commission Bill 2012 (here) proposes the formation of a Good Governance Commission. The proposed Commission will act as the umbrella body for separate bodies performing functions related to ‘good governance’, and therefore will have a number of divisions, including an Anti-corruption Division and an Ombudsman Division. As new bodies with related functions are set up in the future (for example, international crime, freedom of information), it is proposed that these may also be organised as part of the umbrella Good Governance Commission.

 

The Anti-Corruption Commission (Amendment) Bill 2012 (here) and Commissioner for Public Relations (Amendment) Bill 2012 (here) are short amendments which basically do not change the existing Acts, but bring each body under the Good Governance Commission. In the case of the Anti-Corruption Commission, all powers remain the same, however the Bill proposes an organisation structure under the Good Governance Commission. Similarly the Commissioner for Public Relations will also be brought under the Good Governance Commission by the relevant Bill, and renamed as the Ombudsman.

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