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Legislative Assembly for the ACT: 2003 Week 2 Hansard (4 March) . . Page.. 429 ..

MS TUCKER (continuing):

In addition, there is the reversal of the onus of proof as regards legitimate ownership of property, the difficulty and expense to the state of tracing through a labyrinth of paperwork designed to confuse, and the case for only allowing access to legal aid-that is what it seems is meant by "reasonable legal expenses".

I noticed that the Law Society raised concerns about this in its submission. In section 38 of the Act, it says "all legal fees calculated in accordance with the scale of costs for criminal matters determined by the Legal Aid Commission in accordance with the Legal Aid Act". I am not implying that Legal Aid do not do a very good job, but there are real implications here for Legal Aid. We know they are overworked.

These arguments make some sense, but they are breaching principles which protect innocent people from being wrongly convicted-by way of having a more powerful state with access to everything, the defendant being much less well-prepared and, under this scheme, less well-resourced to obtain a lawyer to assist them to understand the charges, argue the evidence, get together the documents, and so on.

This bill is written on the assumption that someone charged is guilty-and that everything must be done to take their property. I am concerned that, in the frustration of failed prosecutions, and perhaps in some law and order push, the government has forgotten the principle of innocent until proven guilty and the principle of a just justice system.

It is at least as important, if not more important than, that our legal system does not penalise innocent people as it is to convict or penalise guilty people. How will Legal Aid cope with this added burden of highly complex cases which previously would have been handled by private lawyers?

The evidence needed to make the application for a restraining order is an affidavit from a police officer which need state only that the officer suspects that a person-called "offender"in the bill-has committed a stated indictable offence. The offence in question does not need to be spelled out in detail. It is sufficient if the police officer suspects that the offender has committed a kind of offence and the affidavit describes the nature of the offence in general terms-that is section 29. We do not require details of the particular property linked to the general kind of offence, nor to the specific day and time.

This is explained as necessary to avoid splitting hairs as to when which part of a complex fraud or organised crime occurred. I understand that-although there are still reservations that we should not go too far. What about all the major non-fraud offences which will also be affected by these new and draconian powers?

The government is also a bit disingenuous in its defence of the civil forfeiture regime without conviction. Yes, there are torts and other civil negligence cases which result in people losing their livelihoods, but those cases are not conducted with all the cards stacked against the person so accused, as will be the case under this law. I do not say this as though it were some game, and that we have to be fair to criminals. This is about being absolutely sure that any person has a fair chance to understand, analyse and argue the case against them, because they may not be guilty.

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