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Legislative Assembly for the ACT: 2002 Week 13 Hansard (21 November) . . Page.. 3887 ..

MR STANHOPE (continuing):

upon conviction for a serious offence and court-ordered forfeiture and court-ordered penalties for the value of the benefits derived by the offender from the crime.

The most significant of the ALRC's recommendations adopted in this bill deal with the inclusion of new civil confiscation measures. The civil confiscation measures proposed by the ALRC include non-conviction-based forfeiture orders for serious offences and non-conviction-based penalty orders for serious offences. The new power to make a civil forfeiture order in relation to serious offences is located in part 5 of the bill, while part 7 includes the new power to make a civil penalty order in relation to the benefits derived by an offender from the commission of a serious offence.

When the ALRC released its report, civil forfeiture mechanisms already existed in New South Wales, in Victoria and under the Commonwealth customs legislation. Since then Western Australia, the Northern Territory and the Commonwealth have introduced legislation that contains civil confiscation measures.

Opponents of civil confiscation measures argue that, due to their punitive effect, confiscation measure should be available only where a person has been convicted of an offence. The government has taken the view that the argument fails to appreciate the philosophical distinction between laws intended to punish an offender, which fall within the ambit of the criminal law, and laws that give effect to the principle that it is unjust for a person to be enriched as a result of their own wrongdoing. As the ALRC observed in its report:

While a particular course of conduct might at the one time constitute those of criminal offence and grounds for the recovery of unjust enrichment, the entitlement of the state to impose a punishment for criminal offence, and the nature of that punishment, are independent in principle from the right of the state to recover the unjust enrichment and vice versa.

The ALRC noted that there is a long history of the courts responding to unjust enrichment in civil matters where the wrongdoer has not been convicted of any criminal offence. The courts have recognised the need to redress injustices resulting from allowing persons to enrich themselves at the expense of others through significant and continuing developments under the general rubric of the law of restitution. The development of the common law in this area has been driven by public policy recognition of the notion that, as a matter of principle, persons ought not be permitted to become unjustly enriched at the expense of others.

This principle was seen by the ALRC as a significant broadening of the common law, which formerly recognised the concept of unjust enrichment in a more limited way through particular rules such as that denying a person who has unlawfully caused the death of another person from benefiting from the estate of that person.

Similarly, this principle is echoed in developments in the law relating to unfair trade practices, under which the courts can set aside contracts where one party acted unconscionably in obtaining the other party's agreement to the contract, thereby preventing the party that acted unfairly from profiting from that contract.

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