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Legislative Assembly for the ACT: 2003 Week 2 Hansard (4 March) . . Page.. 432 ..

MS DUNDAS (continuing):

The rationale for this approach in this bill is that, if defendants have access to their assets to fund their legal defence, many of those who know that their assets will be forfeited will use up those assets on frivolous legal challenges. I believe that this would be unlikely but there is an important implication.

The territory can be denied access to the proceeds of crime. This first consideration should not be pivotal. The underlying rationale of this bill relates to preventing unjust enrichment and removing assets that may be put towards future criminal activity. Where those assets are exhausted on legal challenges rather than confiscated, these outcomes are still achieved. This is a crime prevention measure and it should not be seen as a revenue-raising exercise.

One criticism that has been made of such legislative regimes applying in the United States is that the revenue implications have had an inappropriate impact on the manner in which criminals are pursued, with many being pursued through civil regimes. The ACT Democrats believe that in cases where legal aid is called upon, care must be taken to ensure that the ability of defendants to defend themselves is not compromised.

Another major issue in this bill is retrospectivity. The legislation is retrospective in that assets can be confiscated on the basis of criminal activity undertaken prior to the enactment of the bill. This bill would apply even when the relevant offence or conviction occurred before the bill came into force. In part, this is necessary to ensure that any property that might be confiscated under the current act can still be confiscated under the new act, but the result is that new penalties will apply retrospectively to activities that took place prior to the commencement of this law.

The ACT Democrats are very wary of legislation that retrospectively imposes significant penalties. Of course, it is only imposing those penalties on activities that were already unlawful at the time they were committed. However, it does change somewhat the penalties and consequences associated with these activities, and does so retrospectively.

A further problem with this legislation relates to the information gathering powers. The provisions of this bill dealing with examination orders seem to abrogate the privilege against self-incrimination. The important point to make in this context is that civil forfeiture proceedings under this legislation can take place even where no criminal charge has yet been laid, and they may occur concurrently with the conduct of a criminal investigation.

In the civil proceedings the territory can require the defendant to answer questions and provide documents. There is, of course, no such power in relation to a criminal investigation or a criminal trial, where a suspect or accused generally has the right to remain silent. The concern that has been raised is that the territory could use its compulsory examination powers under this legislation to force individuals to answer questions and provide documents that they could never force them to answer or provide under the criminal justice system because of the privilege against self-incrimination. If the territory could then use information derived from these documents or answers in a criminal investigation and trial, it would be as though the privilege never existed. While the testimony and documents provided can not be used against the individual, anything derived from them can be.

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