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Legislative Assembly for the ACT: 2003 Week 2 Hansard (4 March) . . Page.. 430 ..

MS TUCKER (continuing):

The Law Society points out that restraining orders prevent use of the property, which could be all of a person's property-this is while they are accused, not found guilty; they may be innocent-except for "reasonable living and business expenses". Who defines what is reasonable?

The DPP is given in this bill, at 43(3) a highly unusual power-to veto the court's assessment of what will be needed as evidence. This is extraordinary. In fact, it shows some disrespect for the authority of the court. The government response says that clearly the court would require the DPP to justify his or her position that the property in question does have evidentiary value.

This is not, though, what members who vote for this bill will be writing in the law. What is written in subsection 43(3) on this point is that, if the DPP has told the court that the restraining order applies to property, the court must not revoke the restraining order without the DPP's agreement. There is nothing there about the court being convinced-the court has to go by what the DPP has told it. It is a great shame that the government has not seen fit to engage with this issue.

The Chief Minister, in his tabling speech, suggests that, through this bill, confiscation of profits could be used against environmental crimes and employers committing serious occupational health and safety offences. What penalty would there be in addition? Would this be an extension of the law for the confiscation of cars doing burn-outs?

To confiscate the property used in the commission of an environmental pollution could mean the factory itself. That is a huge penalty. As much as I would like to stop polluters, I do not want it to be done in this backdoor way. If we are going to have a penalty for crimes, then let them be applied using the standards of proof and evidence and the legal processes required in the criminal justice system.

I have grave concerns that the broadening of the definition of "serious"-and hence the widening net of people subject to less protection from longstanding and core principles of justice-is simply part of a drift towards law and order, rather than a well reasoned and well justified change. The Law Society's submission on the draft bill points out that, "The consequences for the person, and the dependants of the person, are far reaching and could be more onerous than any penalty imposed in relation to a criminal conviction.".

Removing 'punishment' from the objects of this bill does not remove the punishing nature of some of the possible outcomes of the bill. The question of retroactivity-making a penalty apply retrospectively-is unfair, even if the action is clearly not morally acceptable at the time of the offence.

We do not usually make laws retrospective, because it would undermine the security we have in our society. The argument put to justify this retroactive element is that the person was never entitled to the property. However, as I have said, this scheme extends beyond actual proceeds of crime to whatever property the person cannot prove, with the aid of an overworked legal aid lawyer, they legitimately own.

MS DUNDAS (11.30): Mr Speaker, this bill brings into effect an expanded civil forfeiture regime at a territory level. The underlying principle offered by the government

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