Northern Territory Second Reading Speeches

[Index] [Search] [Bill] [Help]

CRIMINAL PROPERTY FORFEITURE (CONSEQUENTIAL AMENDMENTS) BILL 2002

Madam Speaker, I move that the bills be now read a second time.

The existing Northern Territory legislation in this area, the Crimes (Forfeiture of Proceeds) Act, is ineffective and outdated. This is not a recent phenomena, not something restricted to the nine months since this government came into office. The original act was introduced in 1988 and has been largely useless since that time. The relevant records reveal that there were 64 cases where offenders were arrested or summonsed for matters involving possession or receipt of the proceeds of crime under the existing legislation. Of those matters, only three proceeded to a court hearing. Of those, two resulted in confiscation of proceeds. Only one of these matters involved the proceeds of drug crime. In that case, only $7000 in cash was successfully confiscated.

The purpose of the bills I am introducing today is to repeal the existing scheme, replacing it with a non-conviction based civil scheme that reflects best practice in this regard. This scheme will bring the Northern Territory into line with developments occurring in most other Australian jurisdictions.

This legislation is aimed at preventing the unjust enrichment of certain individuals as a result of criminal conduct. Criminals should not profit from their criminal activity or benefit from their ill-gotten gains. This legislation provides a mechanism outside the criminal jurisdiction for forfeiture of property used in, or in connection with, the commission of a criminal offence. In particular, the legislation makes provision for the forfeiture of property of a declared drug trafficker, a person convicted of three serious drug offences.

The proceeds of crime are derived at the expense of the rest of the community. They are earned through harm and suffering of others. They can be used to finance future criminal activity and they are tax free. Criminals have no legal or moral entitlement to the proceeds of their crimes and, where property is used to facilitate criminal activity, that property will be forfeited to the Territory.

The need for strong and effective laws for the forfeiture of proceeds of crime is self-evident. The objective of such laws is threefold:

(1) to deter those who may be contemplating criminal activity by reducing the possibility of gaining a profit from that activity;

(2) to prevent crime by diminishing the capacity of offenders to finance future criminal activities; and

(3) to remedy the unjust enrichment of criminals who profit at society’s expense.

Since the 1980s, all Australian jurisdictions introduced laws enabling proceeds of crime to be confiscated after a conviction had been obtained - that is, conviction-based laws. These laws have not been fully effective. In particular, they have failed to have an impact upon those individuals involved at the more serious levels of criminal activity. Advancements in technology and the ease of national, even global, communication, allow individuals to be involved in sophisticated and large-scale criminal activity while being distanced from the actual criminal act. These individuals are able to evade conviction and, therefore, place their profits beyond the reach of conviction-based laws.

In its 1999 report, entitled Confiscation That Counts, the Australian Law Reform Commission concluded that conviction-based laws were inadequate. Several Australian jurisdictions have now enacted, or are in the process of enacting, more effective laws enabling proceeds of crime to be frozen and confiscated through civil proceedings, without the need to obtain a conviction. The Criminal Property Forfeiture Bill 2002 achieves a complete overhaul of our existing conviction-based system for confiscating proceeds of serious crime. It represents a concrete demonstration of this government’s tough stance against crime. All forfeiture proceeds under the Criminal Property Forfeiture Bill 2002 will be civil proceedings. The bill provides a mechanism for civil forfeiture which does not require a conviction for criminal offence as a condition precedent. Civil forfeiture can occur when a court is satisfied that it is more probable than not that criminal conduct has occurred. Such a finding by a court does not constitute a conviction, and no criminal consequences can flow from it. The scheme is concerned with accounting for unlawful enrichment in civil proceedings, not the imposition of criminal sanctions. The object or focus of the proceeding is the recovery of assets and profits, not imprisonment.

The bill provides mechanisms for restraining orders over property so that, for example, where the police believe that property is crime-used or crime-derived, then the Director of Public Prosecutions may apply to the court for a restraining order in respect of that property. Crime-used property is that property used in or in connection with the commission of a forfeiture offence, or property of equal value. Crime-derived property is property derived directly or indirectly from the commission of a forfeiture offence. A forfeiture offence is defined in the bill as an offence punishable by imprisonment for two years or more, or any other prescribed offence. Where the court is satisfied that it is more likely than not that the property was crime-used or crime-derived, then the court must order forfeiture of that property.

The court will also be able to make forfeiture orders in relation to declared drug traffickers, unexplained wealth, criminal benefits and crime-used property substitution. The court may declare a person to be a drug trafficker when that person has been found guilty of three serious drug offences within a period of 10 years. For the purposes of the declaration, a serious drug offence includes cultivation, possession or manufacture of a commercial or trafficable quantity of an illicit drug. Unexplained wealth is described in the bill as property equal in value to any amount by which the total value of person’s wealth exceeds the value of the person’s lawfully derived income - the difference between the person’s total wealth and the wealth for which they can lawfully account.

A crime-used property substitution order may be used, for example, where the person has engaged in unlawful activity but does not own the property used in the commission of the criminal activity. That person will be ordered to pay an amount equivalent to the value of the crime-used property. Forfeiture orders in relation to criminal benefits will prevent criminals exploiting their notoriety for commercial purposes, such as by selling their stories to the media, because such profits fall within the definition of criminal benefits and as such forfeit to the Territory.

The objects of the legislation can only be achieved if law enforcement officers are provided with appropriate powers of investigation. The bill provides for information gathering powers including monitoring, suspension, examination and production orders and search warrants. There is also a power to detain a person where there is reasonable grounds to suspect that the person has property liable for forfeiture or property tracking documents in his or her possession. Suspension orders allow for the suspension of financial transactions so as to provide law enforcement officers with 48 hours in which to investigate appropriately as to those transactions. This prevents the possible transfer of funds out of the jurisdiction while such investigations take place. The legislation makes it an offence to disclose any financial information collected under such an order; such offence being punishable for up to five years imprisonment.

The bill does provide for legal assistance for people who are indigent because their assets are restrained. Legal assistance in forfeiture proceedings can be provided by the Northern Territory Legal Aid Commission in accordance with the organisation’s guidelines. Restrained assets are to be ignored for the purposes of the means test. The bill enables legal aid commissions to be reimbursed for the provision of such legal assistance from the restrained assets of the person and to the extent of any deficiency upon application to the minister out of funds realised from the forfeited property. Such provisions will prevent any possible negative impact on the operation of legal aid organisations with respect to their legal aid priorities.

A number of consequential amendments are also necessary to facilitate the operation of the new forfeiture scheme. The Criminal Property Forfeiture (Consequential Amendments) Bill will amend the Sentencing Act, the Misuse of Drugs Act and the Director of Prosecutions Act so as to facilitate the operation of the proposed new scheme.

As I previously outlined, under the new legislation a person maybe declared a drug trafficker and as a result of that declaration all properties subject to a restraining order owned or effectively controlled by the person, and all property that was given away by the person, will be forfeited to the Territory. The Misuse of Drugs Act is amended to provided for that declaration and to provide which offences are irrelevant for the purposes of a hearing of an application for a declaration.

The Sentencing Act is amended to allow a court to take into consideration, in sentencing an offender, any cooperation shown by the offender in resolving any action taken against the offender under the proposed legislation. It also provides that the court may have regard to a forfeiture order to the extent that the order forfeits property that is not crime derived in relation to the offence for which the offender is being sentenced. Finally, it provides that the court must not make allowance for any other property that is being or maybe forfeited when sentencing an offender who has been a respondent in those proceedings.

The Director of Public Prosecutions Act is also amended by providing that where the Director has conducted proceedings related to forfeiture the property is forfeited to the Territory under a court order. It is a function of the Director to take any further proceedings that maybe required to recover the amount or enforce the order.

Finally Madam Speaker, the bill repeals the Crimes (Forfeiture of Proceeds) Act and provides that the operation of that act continues in relation to any proceedings commenced under that act before its repeal until the proceedings are finally determined.

This is long overdue and important legislation. It will greatly assist in fighting serious crime in our community. The profit of those who traffic or trade in drugs or participate in other criminal activity is at our expense. These bills will ensure that an effective, broad ranging scheme is put into place to recover those profits and to deter people from participating in criminal activity.

I commend the bills to honourable members.

 

[Index] [Search] [Bill] [Help]