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drug kingpins—yachts, fast cars, planes and second homes obtained through the proceeds of drug deals. However, the public image has little to do with reality. In America, forfeitures often occur to ordinary people who happen to find themselves in a situation in which they are simply suspected of having been somehow involved in crimi- nal activity, whether those suspicions ever prove out or not. A database maintained by the US Drug Enforcement Agency indicates that 83 per cent of the property seized from June 1989 to December 1990 via assets forfeiture laws was valued at less than US$50,000 (usually much less).* drug kingpins—yachts, fast cars, planes and second homes consequences to what are essentially suspicions. Assets may obtained through the proceeds of drug deals. However, the be removed from a person's control, without that person public image has little to do with reality. having a right to be heard on the matter, simply because there In America, forfeitures often occur to ordinary people who is a reasonable suspicion that they are connected with serious happen to find themselves in a situation in which they are criminal activity. Assets may be confiscated simply because simply suspected of having been somehow involved in crimi- it is more probable than not that someone, at some time, has nal activity, whether those suspicions ever prove out or not. been involved in serious criminal activity. Incriminating A database maintained by the US Drug Enforcement Agency material may be obtained under compulsion and is only indicates that 83 per cent of the property seized from June inadmissible where a person objects to producing that 1989 to December 1990 via assets forfeiture laws was valued material. The long-established protections imposed by the at less than US$50,000 (usually much less).* criminal law and, in general terms, recognised in the existing Proceeds of Crime Act 1987, are here avoided because they POTENTIAL PROBLEMS OF THE AUSTRALIAN LAW are seen to be inconvenient or to hinder law enforcement. If the US experience is any indication, the Australian legis- "For the purpose of giving effect to that process, the civil lation may well end up penalising many petty criminals, and standard of proof, namely on the balance of probabilities, is victims of the legislation will either have applied, rather than the criminal standard to fight in court to get their property back of beyond reasonable doubt. To that (which can take years) or, worse, they extent, this is a diminution in rights. In will be unable to recover their assets at the same manner, this Bill seems to tres- all, despite their proven innocence. pass on the rights of persons who have While the Australian legislation neither been charged with, nor convicted requires a court decision for assets to be of, any wrong-doing. The Committee, confiscated, the Proceeds of Crime Bill therefore, seeks the advice of the member 2001 is obviously intolerable and is sponsoring the Bill as to the reasons for another step towards a dictatorial Big _ the Proceeds of diminishing rights where there is only Brother State. The Bill, in its present . . . suspicion of, or likely involvement in, form, poses many problems: Crime Bill 2001 IS serious criminal activity." * The legislation could potentially be i i Despite the obvious threats to civil lib- used where criminal convictions in court obviously intolerable erties, assets forfeiture has remained a fail. Civil forfeiture could be used and Is another step key plank of the Australian Labor to sidestep normal criminal proce- dures. ¢ It would be up to suspects to prove they earned their cash and roperty legally. ¢ The legislation potentially could allow police to go on "fishing expe- ditions" against anyone whose con- spicuous wealth cannot immediately e explained. ¢ The proposals of the Bill under- mine the presumption of innocence and could create a system in which accusations by the police might be Party's commitments in the lead-up to the Federal election on 10 November. According to the ALP's official election website:’ "Labor will introduce a federal civil confiscation scheme for the proceeds of serious crime against the Commonwealth. Under Labor's scheme, if it can be proved on the balance of probabilities that a per- son's assets are the profits of a seri- ous crime against the Commonwealth, the Commonwealth can confiscate these assets. All towards a dictatorial Big Brother State. sufficient to force people to disclose all their private financial confiscated criminal assets will be placed into a specified affairs. fund. One third of the money in this fund will be allocated to law enforcement, and two thirds to health, education and TWO PARTIES, ONE GOAL research programs to deal with drug issues. This money will During 2000, Shadow Justice Minister Duncan Kerr intro- supplement core funding." a a Mambharls Rille tha O a1 and is another step towards a dictatorial TWO PARTIES, ONE GOAL During 2000, Shadow Justice Minister Duncan Kerr intro- duced into Parliament a Private Member's Bill: the Criminal Assets Recovery Bill 2000. Announcing Labor's intention to make assets forfeiture an election issue, Kerr claimed: "...quite clearly...it is Labor which is setting the agenda on drugs policy... The civil forfeiture regime introduced in this legislation will allow law enforcement agencies to ask a court to confiscate property believed to be the proceeds of serious criminal activity, without waiting for a conviction... Before confiscating the property, the court will have to be satisfied on the balance of probabilities that it was illegally obtained or bought with the proceeds of illegal activity."* A number of problems were raised by the Senate Committee charged with reviewing Kerr's Bill.° The Committee reported its concern that the Bill: "...seems to attach grave CIVIL RIGHTS UNDER THREAT The Proceeds of Crime Act 1987, and most other Australian assets confiscation legislation to date, is conviction-based legislation; that is, the penalties it creates only become available upon a person's lawful conviction. The Proceeds of Crime Act 2001, if it goes into law,* will work independently of the criminal process and rely on other events to trigger its operation. We cannot escape the conclusion that both the Liberal Government and Labor Opposition support the recommenda- tions of the Australian Law Reform Commission regarding the 32 = NEXUS ... the Proceeds of Crime Bill 2001 is obviously intolerable Big Brother State. Continued on page 82 www.nexusmagazine.com DECEMBER 2001 — JANUARY 2002