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Legislative Assembly for the ACT: 2003 Week 2 Hansard (4 March) . . Page.. 443 ..
MR STANHOPE (continuing):
We just have not been successful. It was in that context that the Australian Law Reform Commission looked at schemes around Australia. Issues in relation to the literary or artistic proceeds provisions in this bill are taken directly from the Australian Law Reform Commission's report. I will read the summary of the Law Reform Commission's recommendation in relation to this:
That the POC Act should provide for the confiscation by means of a pecuniary penalty order of any profits derived by the defendant, or by any other person on the defendant's behalf, or at the request or by the direction of the defendant, from any commercial exploitation of the defendant's criminal activities in circumstances where the marketability of the product generating those profits is related to an indictable offence or offences committed by the defendant.
That is our situation; that is our circumstance. The recommendation continues:
Such confiscation should equally apply to persons found on the civil burden of proof to have engaged in prescribed unlawful conduct to which the recommended new non-conviction based regime applies.
That is what we have done. It continues:
For the purpose of such confiscation, "product"should be widely defined as any publication whether written or electronic, including any media from which visual images or words or sounds can be produced, as well as any live entertainment or representation.
The power of the court to make such a pecuniary penalty order should be discretionary.
Once again, that is what we have done. The recommendation continues:
However, in determining whether to make the order, or whether to apply the order to the whole, or part only, of the profits, the court should have regard to
whether it is in the public interest to confiscate the profits;
whether the product has any general social or educational value, and
the nature or purpose of the product including its use for research, education, rehabilitation or deterrence.
No time limitation should be prescribed in relation to applications for the making of pecuniary penalty orders in respect of profits derived from the commercial exploitation of unlawful activity.
Ms Tucker goes to all the issues around rehabilitation and the importance of allowing people to find some self-respect and some sense of worth, and we acknowledge that that was the basis of the recommendation that the Australian Law Reform Commission made; indeed, that is the basis of the provision that was included in the legislation.
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