Page 5954 - Week 18 - Wednesday, 11 December 1991
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MR COLLAERY (5.34): Currently, the seizure and confiscation of proceeds of crime in the ACT is provided for under the Commonwealth Proceeds of Crime Act 1987, and, as a result of the transfer of responsibility for the prosecution of ACT offences from the Commonwealth to the ACT on 1 July 1990, the Commonwealth Act will cease to apply to the ACT, with effect no later than 4 March 1992. It is for that reason that the Attorney is very anxious, no doubt, to see this Bill achieve passage.
So far as I know, the ACT will join all other jurisdictions, except Tasmania, in having enacted proceeds of crime legislation. The history of proceeds of crime legislation is marked by occasional bursts of congratulatory messages on one hand and criticism from jurists, the purists, the absolutists - and Mr Moore would well understand those categories - who question the civil liberties aspects of this and hold that civil liberties are paramount, and that the expropriation of property is a matter to be approached very carefully in a democracy.
The confiscation and expropriation of property relating to offences got its toehold in this country following organised crime disclosures in relation to drug trafficking. We watched the legislation expand to cover a wider range of offences until it became what is encompassed in the Bill before the house, which is, as members are aware, a wide net to catch a whole manner of proceeds. I commend to members the definition of "proceeds" at page 6 of the Bill, which is:
"proceeds", in relation to an offence, means any property that is derived or realised, directly or indirectly, by any person from the commission of the offence.
I also remind the house that the Bill is premised, of course, on the commission of an offence. One goes to clause 19 of the Bill to work out the procedures for forfeiture orders. Briefly, they apply where the Director of Public Prosecutions applies to the court "for an order in respect of a person's conviction of an offence" and, additionally, where "the court is satisfied that the property is tainted property in respect of the offence". "Tainted property" takes the ordinary common meaning of those words, and you will read on to see that this jurisdiction is bringing forward legislation to reflect the Commonwealth Bill.
It is a replica in many respects, but it certainly does not follow the New South Wales legislation which, of course, expropriates property related to suspected offences. In other words, the New South Wales benchmark provides in the Drug Trafficking (Civil Proceedings) Act 1990 for the confiscation of property of a person without requiring a conviction.
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