Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .

Legislative Assembly for the ACT: 2003 Week 2 Hansard (4 March) . . Page.. 428 ..

MS TUCKER (continuing):

potentially done by letting someone out to possibly steal another bicycle is much less than the harm done by locking up someone who has not stolen a bicycle.

Similarly, we must question whether the harm to be done to society and to individuals involved, because of the risk of getting it wrong in the case of lesser crimes, has been adequately taken into account in this bill. The Law Reform Commission canvassed suggestions for expanding the definition of "serious offences"by adding other forms of crime to the list. In the view of the commission, further detailed examination of particular offences is likely to point to there being such a basis for widening the statutory forfeiture regime-detailed examination of particular offences, not a blanket five years or more in prison. Even Queensland, which had a blanket year definition, used 20 years plus a list of specified offences. Again, the commission did not have the time to do this detailed finessing.

The Chief Minister noted in his tabling speech that the leaders conference in April 2002 had extracted a promise from him to "strengthen our efforts to combat serious and organised crime". There has been clear explanation from the Attorney-General of why we are extending the net for serious and organised crime to include these other offences. The main response I have had to this concern about broadening the net is that it would not make economic sense for the government to prosecute proceeds of smaller-scale crimes.

This targeting follows logically, to some extent. There is not much point proceeding with this type of case if it will cost the state more to recover the profits of smaller-scale crime than will be gained. That is, there is not much point if you are clear that this is not about punishment per se. Confiscation of criminal assets is understood to be not punishment but restitution-setting the financial affairs of the perpetrator or perpetrators and their associates back to where they were before the crime. That is one of the core arguments proponents of this bill and this type of bill use to support the overturning of several long-held and fundamental principles of our criminal justice system.

Although punishment does not now appear in the objects of the bill, I understand it was listed as an object in the exposure draft. Whatever is listed in the objects, this bill substantially expands the boundaries of what may be seized. Tainted property in the Proceeds of Crime Act was defined fairly simply as "property used in, or in connection with, the commission of the offence, or proceeds of the offence". In this bill, it includes anything on the person committing the offence-or allegedly having committed the offence, properly speaking, or soon afterwards-regardless of whether the goods were actually purchased with the proceeds of crime. It includes anything that the person allegedly intends to use to commit a crime. It also includes profits from any artistic works that might be connected to the offence in any way. I will speak more on this aspect in the detail stage.

I note that characterising the effects of this bill, as the government does in the EM as "on assets derived from unlawful activity"is not entirely accurate. It is also anything else an accused person may own and some things that other people may own. The ALRC and others have noted the failure of the previous scheme as regards major organised crime, because of the capacity of the perpetrators to avoid detection-hence, the case for breaching legal professional privilege. That is obviously related to the potential for a lawyer to be seriously involved in crime.

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .