Legislative Assembly for the ACT: 2003 Week 2 Hansard (4 March) . . Page.. 434 ..
MS DUNDAS (continuing):
due to a number of reservations about the operation of this legislation and its impact on civil liberties, as raised by the Australian Law Commission and the Scrutiny of Bills Committee report, we are unable to support this bill as it stands.
MRS CROSS (11.41): Mr Speaker, the main purpose of this bill is to encourage law abiding behaviour through reducing the benefits provided by criminal behaviour. In short, it seeks to take the profit out of crime.
The most significant part of this bill is the implementation and adoption of civil forfeiture, as recommended by the 1999 Australian Law Reform Commission report entitled Confiscation that Counts.
Civil forfeiture is a forfeiture not based on criminal convictions but on the principle that it is unjust for a person to be enriched as a result of their own wrongdoing. Some exclusivity is provided in respect of the territory's right of punishment for criminal behaviour and the right of the territory to recover unjust enrichment as a result of someone's wrongdoing.
Historically, the confiscation of criminal assets has been used to target the illegal drug trade, organised crime and white collar crime. This bill, with the addition of the civil forfeiture clauses, means that the catalogue of criminality could now be expanded and used to prevent, or at least discourage, environmental crime, sexual exploitation, and occupational health and safety crime.
I support the passage of this bill and will address some of the Greens' amendments when Ms Tucker moves them, as I believe they have some merit.
MR STANHOPE (Chief Minister, Attorney-General, Minister for Community Affairs and Minister for the Environment) (11.42), in reply: I thank members for their contribution to this debate. This is a very significant piece of legislation which raises a number of complex issues. It deals with a whole range of issues going to the onus of proof, the separation of powers and some of the attitudes that we have adopted.
I believe that the provisions that have been included in the legislation are all appropriate and defensible. Some of the arguments and criticisms that have been raised by Ms Tucker and Ms Dundas about the potential of the legislation are distinguishable from some of the more black and white interpretations of issues around the onus of proof and retrospectivity or retroactivity that we are normally confronted with in this place.
I will go to the points that were raised by members. In this context, I might say that the report of the Scrutiny of Bills Committee raised these very same issues and I stand by the response that I gave to the committee on them. The first point that was raised was the issue around retrospectivity. Some people find this notion uncomfortable. I do not think it is true retrospectivity in any event. It seems to me, as I say, quite distinguishable. A person is convicted of a crime-a serious crime, perhaps a murder, perhaps serious drug crimes-and a conviction is undertaken. The crown, the state, becomes aware down the track of proceeds from that particular crime, institutes action to confiscate the proceeds of that serious or heinous or appalling crime, and because that confiscation activity is taken after the crime was committed, some are suggesting, "That's retrospective. You can't do that."