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Legislative Assembly for the ACT: 2003 Week 2 Hansard (4 March) . . Page.. 435 ..

MR STANHOPE (continuing):

You cannot some time down the track, after somebody has been convicted of a crime, say, "Well, it's too late. They have made $10 million out of some major heroin importation, they have been tried and convicted, they are in prison serving the penalty, you know they have got $10 million sitting in the bank but you can't touch it."It is just arrant nonsense to suggest that the laws of retrospectivity should prevent that from occurring. I just think this is distinguishable.

We are not talking around the application of a retrospective provision to prove criminality, and the Labor Party and the government would stand against that-the suggestion that, "Well, you have committed a crime this day and down the track we are going to change the law on the basis that we want to pursue you for another crime."We would not accept and would never accept that, and generally nor has this Assembly done so. We have flirted with it here and there in a couple of instances, but we are not suggesting that. We are not suggesting here, in any sense, that we are applying a retrospective provision to a second criminal offence. And we need to acknowledge that we are talking here about a civil process, namely a civil forfeiture process, to allow us to confiscate ill-gotten gains.

As is said in the government's response to the Scrutiny of Bills Committee, the mere fact that the mechanism for recovering illegally obtained benefits did not previously exist does not make those assets any cleaner. The assets are still tainted. Offenders are not entitled to continue to enjoy the benefits derived from their illegal activities simply because the legislation came into effect after they had committed the crime and whilst they were serving out their sentence in prison, waiting for the day that they are released so they can withdraw the $10 million that they have sitting in the bank.

So I do not believe the arguments against retrospective legislation, particularly as it applies to the criminal law-and that is the sense in which we use it-should even be used in this debate. It is simply just not relevant to the debate around a civil forfeiture procedure for the confiscation of proceeds of crime.

Mention was also made of the operations of the automatic forfeiture procedures within the legislation. I have to say-I will probably need to look at the Hansard; and Ms Tucker may take issue with me on this-that I do not believe that Ms Tucker's explanation of the operation of the automatic forfeiture procedure is how the legislation operates. It is the case that there is an automatic forfeiture regime. It is in fact a feature of the existing scheme. All Australian confiscation schemes derived from the 1987 model, on which the previous Commonwealth and ACT proceeds of crime legislation was based, have had an automatic forfeiture regime.

It needs to be noted that offenders, and any third party interest, have the capacity to seek to exclude assets from restraint so that they are not automatically forfeited upon conviction for a serious offence. I cannot recall from your speech, Ms Tucker, whether you acknowledged the discretion that exists within the court to exclude certain assets from automatic restraint. But that is a feature of the legislation. The legislation does provide the court with a discretion to exclude some assets. So I think the essential point that you were making was based on a misreading of the legislation.

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