Civil Forfeiture of Proceeds of Crime in Australia

Date01 April 2002
Published date01 April 2002
Pages345-359
DOIhttps://doi.org/10.1108/eb027317
AuthorDavid Lusty
Journal of Money Laundering Control Vol. 5 No. 4
Civil Forfeiture of Proceeds of Crime in Australia
David Lusty
'It is incorrect to view the recovery of the profits of
unlawful activity as a part of the criminal justice
process and, as such, justifiable only on the basis
of a prior finding of guilt according to the criminal
standard of proof beyond reasonable doubt.'1
'The criminal justice system is not designed to take
away from criminals the gains they have made
from
crime.'2
INTRODUCTION
No person should be permitted to become unjustly
enriched at the expense of another individual or
society at large and those who engage in wrongdoing
should be held financially accountable for the costs
and consequences of their actions. These principles
form the philosophical foundation for laws around
the world aimed at confiscating proceeds of crime.
The need and justification for such laws is at least
sixfold:
to deter crime by reducing actual and expected
profitability;
to prevent crime by diminishing the capacity of
offenders to finance further criminal activity;
to redress the unjust enrichment of those who
profit at society's expense;
to compensate society for the harm, suffering and
human misery caused by crime;
to reimburse the state for the ever-increasing cost
of fighting crime; and
to engender public confidence in the adminis-
tration of justice by demonstrating to the
community that crime does not pay.
There are two basic types of law for the confiscation
of proceeds of crime: (i) conviction-based laws, which
treat the issue of confiscation as part of the criminal
prosecution process by generally requiring an actual
or imminent criminal charge as a prerequisite to the
restraint of suspected proceeds of crime, and a crim-
inal conviction as a prerequisite to the confiscation
of proceeds of crime; and (ii) civil forfeiture laws,
which treat the question of confiscation as a comple-
tely separate issue from the imposition of a criminal
penalty, with proceedings conducted in civil courts
according to civil standards of proof and civil rules
of procedure.
After decades of disappointment with conviction-
based confiscation, a growing number of jurisdictions
around the world are turning to civil forfeiture. Such
laws have operated with significant success in
America,3 Italy4 and Ireland,5 have recently been
enacted in South Africa6 and Ontario,7 and are
likely to be adopted throughout the UK in the near
future.8 This article reviews Australian developments
in this field, which include a number of innovations
and interesting parallels with the UK.
CALLS FOR CONFISCATION
The initial impetus for Australia's confiscation laws
came from a series of royal commissions of inquiry
in the 1970s and early 1980s: Moffat (1973-74),
Williams (1977-79), Stewart (1981-83) and Costigan
(1980-84).9 Each inquiry revealed disturbing levels of
organised crime and corruption. Each commissioner
urged government to address the problem by
attacking the primary motive for such criminal
activity profit. For example, Costigan QC stated:
'The first thing to remember is that the organisa-
tion of crime is directed towards the accumulation
of money and with it power. The possession of the
power that flows with great wealth is to some
people an important matter in
itself,
but this is sec-
ondary to the prime aim of accumulating money.
Two conclusions flow from this fact. The first is
that the most successful method of identifying
and ultimately convicting major organised crim-
inals is to follow the money trail. The second is
that once you have identified and convicted them
you take away their money; that is, the money
which is the product of their criminal
activities.'10
Justice Moffitt, then President of the NSW Court of
Appeal, similarly stated:
'A primary target for attack, if syndicates and their
power are to be destroyed, is the money and assets
of organised crime. There are many reasons to
Journal of Money Laundering Control
Vol.
5, No. 4, 2002, pp. 345-359
© Henry Stewart Publications
ISSN 1368-5201
Page 345

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