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Legislative Assembly for the ACT: 2003 Week 2 Hansard (4 March) . . Page.. 431 ..

MS DUNDAS (continuing):

in relation to this bill is that it remedies the unjust enrichment of individuals who profit at society's expense. It is also said that it will deter crime by reducing profits and prevent crime by diminishing the capacity of offenders to finance future criminal activities.

The ACT Democrats are supportive of the principle that criminals should not be able to profit from crime, but the legal arguments that exist around this are quite complex and there are a few vital elements of this legislation that need to be outlined. The first is that civil forfeiture provisions will permit the securing of assets on the basis of civil proceedings. The civil forfeiture regime allows the assets to be confiscated on the basis that they are proceeds of crime, without the need to obtain a criminal conviction. The confiscation of an individual's assets is a significant penalty.

At its heart, this bill is about enabling the territory to impose sanctions on people for alleged criminal behaviour in circumstances where it cannot prove its case beyond a reasonable doubt in a court of law through the criminal justice system. This is a profound departure from the important principles of law and warrants close consideration.

This lowering of the standard means that a person's assets can be confiscated on the basis that they are proceeds of crime even where the tribunal has reasonable doubt as to the person's guilt. Furthermore, there is no requirement that the allegation of criminality be particularised-that is, the person must, on the balance of probabilities, have committed a crime but not a particular crime.

For the purposes of ordering a forfeiture of assets, the court need only be satisfied that some criminal offence or other has occurred, not that a particular offence has occurred. It is a highly contentious proposal that a person who is acquitted of a particular crime can have a substantial penalty imposed upon him or her by the territory for the same alleged activity by confiscating their assets under this legislation.

Once assets are restrained under this legislation, the individual concerned will not have access to his or her assets for the purpose of funding his or her defence to the forfeiture proceedings. This means that people who may have had significant legitimately acquired assets may not be able to fund the sort of defence they would like.

The possibility of capping the confiscation has been raised-such as, only confiscating assets over and above a limit to allow the alleged criminal to fund their legal defence. But, instead, such people will be given access to legal aid where appropriate. They will be assessed for eligibility for legal aid on the same basis as other individuals, although restrained assets will not be included in the means test.

It is not clear that the legal aid system will in all cases provide people with the standard of representation to which they would otherwise be entitled. The juniorisation of legal aid is a major concern. The pay scales are such that some senior lawyers do not make their services available to legal aid clients. This is not to cast aspersions upon the many talented people who represent legal aid clients-some of them are very experienced and very dedicated. However, I do note that pay scales for Legal Aid are currently under review, partly as a result of concerns about the juniorisation of the representation of Legal Aid clients. In this context, it is worth remarking that people who require legal aid only because the state has restrained their assets may be denied experienced representation for which they would be quite happy to pay.

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