Legislative Assembly for the ACT: 2003 Week 2 Hansard (4 March) . . Page.. 438 ..
Clauses 1 to 9, by leave, taken together and agreed to.
MS TUCKER (11.58): I move amendment No 1 circulated in my name [see schedule 1 at page 489]. Clause 10 is concerned with the definition of "tainted property". I am seeking to omit clause 10 (2) on the grounds that the words "or was intended by the offender to be used"exceptionally broaden the definition. This could be explained as removing the need to wait for crime to actually be committed, of the risk of waiting too long to catch someone in the act. There could be serious legal consequences for a person, particularly in view of what is contained in clause 10 (2), which states:
... any property found in the possession of an offender at the time of, or immediately after, the commission of the offence is taken to be the property that was used, or was intended by the offender to be used, in relation to the commission of the offence, unless the contrary is established by the offender.
This becomes tainted property which, in the case of conviction of a serious offence-a maximum penalty of five years or more, which includes the penalty of some stealing offences-will be automatically forfeited on conviction if the DPP makes an application for a restraining order. This is reversing the onus of proof, not in relation to proceeds of crime but in relation to anything the offender or alleged offender had on them at the time of allegedly being about to commit a crime.
It might be a nice feeling to take away the instruments of crime, but not everything should be taken away unless it can be proved that it was to be used for that purpose. This is where this bill really crosses the line from removing proceeds of crime to being an additional punishment. This change in approach is reflected in the change of name of the bill. It is no longer just about proceeds of crime; it is about the assets of someone convicted of a crime.
Mr Stanhope was just suggesting that I had invented a definition for "serious offence". We are using the current definition. If we were inventing our own definition, I can assure you it would not look like the one we have in the bill.
Basically, though, this question is about the onus of proof. It may be easy enough to prove that you legitimately own something when you are dealing with a big business offence and the materials involved are itemised, receipted, et cetera. Mr Stanhope disagrees. He thinks that everyone in Canberra would have a paper trail for their possessions. I do not think that shows he is in touch with the situation of a lot of people in Canberra, particularly in respect of possessions.
It is important to make the point that an opportunity is being given to punish someone in what can be a substantial way. In addition to the penalty decided on by a criminal court, the punishment may materially disadvantage dependants. It is proposed to take away the getaway car. But is this also a family car? A family car may sound like a stupid choice of getaway car, but smaller drug dealers, for example, have been known to use such