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Legislative Assembly for the ACT: 2003 Week 1 Hansard (20 February) . . Page.. 306 ..

MR STEFANIAK (continuing):

There is a distinction between laws intended to punish an offender, which is the criminal law-invariably in this territory, the Crimes Act, where criminals are charged, convicted and a penalty ensues-and laws that give effect to the principle that it is unjust for a person to be enriched as a result of their wrongdoing, which is very much a civil matter. We already know of other examples of where people have to return property which they have unjustly received.

There is, in fact, a long history in civil matters of courts responding to unjust enrichment of people, where wrongdoers have not been convicted of any criminal offence. It is right to separate. Some examples given by the Attorney in his presentation speech include rules which deny a person who has unlawfully caused the death of another person the right to benefit from the estate of that person; and laws relating to unfair trade practices under which the courts can set aside contracts where one party acted unconscionably in obtaining another party's agreement to a contract, thereby preventing that party from acting unfairly by profiting from the contract and ensuring that the money be returned. Often money cannot be returned to the individuals concerned. A classic case of this is the proceeds of crime held by drug dealers. This money is returned to the people, to the state, and that is quite right, in my opinion.

The Scrutiny of Bills Committee, of course, adheres to specific terms of reference. Might I compliment the Attorney and his department in respect of this report. He did not spit the dummy like he did with one of the other ones, which I thought was over the top, but he firmly pointed out a number of issues which I certainly accept and which I think explain the situation very well.

I will refer briefly to page 2 of the Attorney's reply to the Scrutiny of Bills Committee report-I will not read all of it but I think this explains an area of concern we have, bearing in mind our terms of reference. This area is very important for the public interest and the interests of, I suppose, the many innocent victims of criminal activity who will be assisted by legislation such as this. The Attorney said:

Turning to the discussion at page 4 to 6 of the Report about the civil nature of confiscation proceedings, I would like to draw the attention of the Committee and Members to the fact that confiscation proceedings themselves have always been civil in nature. Section 90 of the current Proceeds of Crime Act of 1991 already applies the civil standard of proof in confiscation proceedings. The only relevance of the criminal standard of proof to confiscation proceedings under the current legislation, and under the Bill, is in relation to any criminal convictions that form the basis for taking confiscation action against the offender.

The response continues:

It should be borne in mind that everyday, people are sued in the courts for negligence, contract disputes and occupiers' liability. In these civil proceedings, all of which apply the balance of probabilities test-

that is, the civil test-

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