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once a financial year, how much of the funds is available for distribution. Then, half of the balance is paid to law enforce- ment projects selected by the Attorney-General. The other half is paid to drug rehabilitation and drug education projects chosen by the Minister for Health. According to the most recent figures available (1996), a total of A$29.8 million has been paid into the trust fund since it was established. Most of the money—$26.4 million—came from the Proceeds of Crime Act. Other sources of funds were: section 243 of the Customs Act, $34,000; other sections of the Customs Act, $3.3 million; and section 9 of the Crimes Act 1914, $22,000.! The Proceeds of Crime Bill 2001 would allow a court to distribution. Then, half of the balance is paid to law enforce- freeze and confiscate assets where the Director of Public ment projects selected by the Attorney-General. The other Prosecutions (DPP) can prove to a court on the "balance of half is paid to drug rehabilitation and drug education projects probabilities" that a person had engaged in serious criminal chosen by the Minister for Health. activity in the previous six years. No criminal conviction According to the most recent figures available (1996), a would be required before confiscation could occur. The pro- total of A$29.8 million has been paid into the trust fund since posed forfeiture law would apply to suspects engaged in cer- it was established. Most of the money—$26.4 million—came tain serious Commonwealth offences punishable by three from the Proceeds of Crime Act. Other sources of funds were: years' jail or more—offences such as drug trafficking, money section 243 of the Customs Act, $34,000; other sections of the laundering, people smuggling and serious property offences. Customs Act, $3.3 million; and section 9 of the Crimes Act The new regime would operate alongside the existing convic- 1914, $22,000.! tion-based confiscation regime. The legislation also would allow for assets and cash shifted offshore to be retrieved. THE PROPOSED ASSETS FORFEITURE REGIME The proposed Proceeds of Crime Bill 2001 is driven not by The Proceeds of Crime Bill 2001 originates from the recom- need but by police hype, political pres- mendations of the Australian Law sure and United States insistence that Reform Commission (ALRC) report, the rest of the world imitate its mistakes. "Confiscation that counts: A review of Under the Bill, introduced by Justice the Proceeds of Crime Act 1987".” and Customs Minister Senator Chris The ALRC report recommends that the Ellison, the Commonwealth would be Commonwealth should adopt a civil for- able to confiscate assets with a court's feiture scheme, where the identifiable approval. The Commonwealth would The proposed Proceeds proceeds of crime could be recovered have to show that, on the balance of . . without the need for a criminal convic- probabilities, those assets are the profits . of Crime Bill 2001 tion. In proposing this regime, the ° serious coming activity. ms means IS driven not by need Commission rejected the rouen that at the traditional common law princi- . recovery of profits from unlawful con- ple, "innocent until proven guilty", but by police hype, duct is an adjunct of the criminal law would be discarded and "the balance of it process and, as such, should apply only probabilities", which arguably amounts political pressure to conduct that is criminal and has been and United States insistence that the rest of the world imitate its mistakes. to little more than suspicion of guilt, would be deemed enough to result in a serious and apparently irrevocable loss of people's life- support systems: their money, their homes, property, cars an other possessions. The Proceeds of Crime Bill 200 also introduces provisions for the forfeiture of "literary proceeds". Literary proceeds can be broadly defined as profits or benefits derived by a criminal as a result of the publication, in any form, of adoption of the ALRC's recommen- details or experiences related to dations, resulting in the next phase that person's crime or life of criminal activity. The expression of the fight against crime, the war against drugs and now the "literary proceeds" also includes "chequebook journalism" as effort to combat terrorism: the Proceeds of Crime Bill 2001. related to criminal activity. proved "beyond reasonable doubt". Instead, the Commission asserted that the recovery of the profits of unlawful activity, on proof of unlawful conduct on the civil onus of "on the balance of probabilities", is justified. To support this view, the Commission relied on the prin- ciple that no one should be entitled to be unjustly enriched on the basis of conduct that is criminally or civilly unlawful. The Liberals recommended the ADIIAATIARIC LIRINED IAITEDAIATIANAL TOLCATICES The proposed Proceeds _ of Crime Bill 2001 is driven not by need but by police hype, political pressure and United States OBLIGATIONS UNDER INTERNATIONAL TREATIES The United Nations has played a key role in the development of the trend towards civil and criminal assets confiscation. The 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances recognised the interna- tional dimension of the drug trade and its associated money laundering activities. The Convention contained what could be termed as mini extradition and mutual assistance treaties. The Convention obliges the parties to have laws which crimi- nalise drug-related money laundering, enabling them to trace, bring under control and ultimately confiscate proceeds of drug trafficking both domestically and at the request of other party states. Australia played a major role in the development of that BACKGROUND ON ASSETS FORFEITURE IN AUSTRALIA Australia's civil and criminal assets confiscation legislation has its roots in the War on Drugs. In 1987, the Proceeds of Crime Act came into operation. Under the Act, the authorities gained the power to confiscate assets or money used in, or acquired as a result of, offences against Commonwealth or Territory laws. In December 1991, the Confiscated Assets Trust Fund (CATF) was established. Since then, all assets recovered under the Proceeds of Crime Act and under the narcotics- related provisions of the Customs Act 1901 have been paid into the fund rather than consolidated revenue. Presently, the Attorney-General must determine, at least 30 + NEXUS PURPOSE OF THE AUSTRALIAN LEGISLATION insistence that the rest of the world imitate its mistakes. www.nexusmagazine.com DECEMBER 2001 — JANUARY 2002