Legislative Assembly for the ACT: 2003 Week 2 Hansard (4 March) . . Page.. 440 ..
MR STEFANIAK (continuing):
fact the family car-it probably was not even the offender's-that may well be enough to ensure that that car is not taken as part of the proceeds.
I think the examples of tainted property that are given in the bill are eminently sensible. I would also remind members of the fact that under the old bill, the DPP, on behalf of the people of the ACT, had an immense amount of difficulty getting proceeds of crime forfeited to the state. Last year only about $40,000 out of $550,000 was actually forfeited. If you are going to gut this bill, a lot of criminals will be laughing all the way to the bank or wherever they are hiding their ill-gotten gains.
I think there are quite sensible provisions in the bill, including one which allows an offender to say, "Hey, no, that property wasn't the proceeds of crime,"and a court will take that into account. Courts are used to doing that and have been doing so for decades.
MR STANHOPE (Chief Minister, Attorney-General, Minister for Community Affairs and Minister for the Environment) (12.06): The government will not be supporting the amendment. I think it needs to be recorded that all of these provisions are not absolute, that there are exemptions. As Mr Stefaniak has said, if a person from whom property has been confiscated can show to the court that a case has not been established, then the court will not agree to the confiscation.
We need to read clause 10 (2) quite precisely. The words used are:
... 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 property that was used, or was intended by the offender to be used, in relation to the commission of the offence ...
I think that is quite explicit; it is narrow. It is only property that was with the offender at the time of the offence or that was in his possession immediately after. So we are talking about circumstances in which the authorities have arrested, restrained or detained an offender, either at the time of the offence or immediately after, and it can be proved that that person had particular property with him at the time.
Mr Stefaniak gave the example of a car being used as a getaway vehicle for an armed robbery. I do not think it is unreasonable to argue that the legislation should apply to tools of trade that can be utilised in major crimes. The whole basis and scope of this legislation is to take the tools of trade from criminals. I think that is appropriate. I think the words "unless the contrary is established by the offender"give sufficient safeguards, and to that extent I have that degree of faith in the courts.
Clause 10 agreed to.
Clause 11 agreed to.