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Convention and ratified it in November 1992. The Convention came into effect for Australia in February 1993. At the invitation of the Council of Europe, Australia also participated in the development of the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. Following ratification, this Convention came into force for Australia on 1 November 1997. It contains similar obligations to those in the UN Convention, but in relation to criminal conduct not restricted to drug trafficking. Australia was the first country not a mem- ber of the Council of Europe to become a party to that Convention. The effect of Australia's becoming a party to the conven- tions is that the enactment of assets forfeiture laws in all Australian jurisdictions to the extent provided for in the con- ventions, and which had preceded the entry into force of the conventions, must be maintained if Australia is to continue to fulfill its international legal obligations. Most state laws require that forfeitures be ordered by a judge. Federal law enforcement has the power to order forfei- tures without a judge, and does in most cases. Sometimes police may seize money they believe is linked to drugs, but they can't prove it under state standards and they don't want to give the money back to a suspected drug dealer. US Federal law lets them take the money out of the owner's hands. Convention, but in relation to criminal conduct not restricted WHO BENEFITS FROM FORFEITED ASSETS? to drug trafficking. Australia was the first country not a mem- The Proceeds of Crime Bill 2001 is an open door for the ber of the Council of Europe to become a party to that Australian Government to increase its revenue. The Bill's Convention. explanatory memorandum says "it is not possible to estimate The effect of Australia's becoming a party to the conven- the cost of bringing confiscation proceedings, or of preserving tions is that the enactment of assets forfeiture laws in all and realising property that is the subject of orders under the Australian jurisdictions to the extent provided for in the con- Bill; however, it is expected that the revenue generated from ventions, and which had preceded the entry into force of the the confiscation of property will more than offset the conventions, must be maintained if Australia is to continue to investigative and legal costs in bringing proceedings and fulfill its international legal obligations. administering property". One of the basic premises of assets forfeiture legislation is THE GLOBAL TREND IN that proceeds of crime will be ASSETS SEIZURE used to fight crime itself or to The push for civil asset forfei- bolster critically rundown gov- ture laws is part of a global trend ernment services. Health, edu- in democratic states. cation and welfare services are In March 2001, a Proceeds of some areas where the proceeds Crime Bill was proposed by the . . are typically allocated. UK Parliament. The Bill sought The push for civil asset forfeiture However, as US experience to give police new powers to laws is part ofa global trend in demonstrates, forfeited assets seize cash and property believed . often stay in the hands of law to be the proceeds of criminal democratic states. enforcement agencies. activities. As in Australia, the Hundreds of examples are cited UK Bill threatened the common on the database maintained by law tradition that people are the organisation FEAR, innocent until proved guilty and Forfeiture Endangers American it was immediately condemned Rights.’ FEAR is a national y civil libertarians. Under the nonprofit organisation dedicated UK legislation, still under consider- to reform of Federal and State ation, the government would establish a Criminal Assets asset forfeiture laws to restore due process and protect proper- Recovery Agency (CARA), responsible for tracking down ty rights in the forfeiture process. Several shocking examples criminals’ assets and taking away their money. The UK legis- cited by FEAR include: lation would also seek to allow the tax system to be used to ¢ A North Carolina State Highway Patrol trooper stopped a land suspects with huge demands for payment, when other driver on Interstate 95 for tailgating. A police dog signalled efforts to investigate and seize the proceeds of crime have that drugs were inthe Toyota, where troopers found failed. Other new powers include the ability to freeze assets US$105,700 and two grams of marijuana. The driver denied as soon as investigators begin examining a suspect's affairs. owning either the drugs or the money. The Highway Patrol In Canada, the federal government has made several gave the money to the Drug Enforcement Agency (DEA), attempts to introduce civil asset forfeiture initiatives. One which returned more than $80,000 to the State Patrol, even recent legislative attempt, Bill C-81, sought to turn financial though North Carolina law generally requires seized money to managers into police informants, grant Customs officers the be sent to Education. power to strip travellers of undeclared cash and create a new * A Georgia trooper stopped a 1996 Monte Carlo for speed- bureaucracy to sift through financial records without a target- ing on I-95. After the driver and passengers gave conflicting ed individual's knowledge or consent. All this is supposedly stories, the trooper searched the car and found a hidden com- necessary to combat the scourge of "money laundering" and to partment containing $7,000, which the driver said was from help take away from criminals the proceeds of their crimes. savings. The patrol turned over the money to the DEA, which Assets forfeiture laws have existed in the USA for more in January returned $5,440 to the patrol. Under Georgia law, than 20 years and have enabled law enforcement agencies to forfeited money should go to the State's general fund. strip citizens of billions of dollars in cash and property with ¢ In 1996, the Missouri Highway Patrol stopped a little or no recourse. Volkswagen Golf for speeding, searched it because the occu- In the USA, some state laws protect people from having pants seemed suspicious and found $24,000. No drugs were property forfeited by police unless they're charged with a found and no one claimed the money. The patrol gave it to crime. But under US Federal law, authorities don't even need the DEA to be forfeited (the legal term for "confiscated"). a criminal charge to seize property. In fact, experts estimate Most people believe the official rhetoric, that assets forfei- that most seizures occur without a criminal charge being laid. ture is designed to confiscate the luxurious possessions of The push for civil asset forfeiture laws is part of a global trend in democratic states. NEXUS = 31 DECEMBER 2001 — JANUARY 2002 www.nexusmagazine.com