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Monday, 23 September 2002
Page: 4641

Senator HARRIS (4:11 PM) —In speaking in support of the Democrats amendment that is before the chamber relating to double jeopardy, I would like to present some comments from some of the submissions made to the Senate committee on this matter. In one of those submissions, a comment was made that one of the major hurdles in what is often described as an `unconstitutional' bill is that it seeks to reverse the onus of proof. That is an issue that we have to take into account in relation to the Democrats amendment, because we are clearly saying that the government has already reversed the onus of proof on this person that finds themselves before the court. If they go through that process and provide the information to prove their innocence then, under the government's legislation, they still have the ability to access the civil forfeiture process set out in the bill.

The submissions go to a lot of issues. The Australian Civil Liberties Union of Melbourne submission put an issue very succinctly. It says:

The bill eliminates `innocent until proven guilty' and the onus is on the person accused to establish that he or she got his property or assets legally.

The research officer of the union, Geoff Muirden, continues:

Even if no prosecution is brought, persons can be liable to a forfeiture order as a result of a civil forfeiture proceedings.

That is one of the issues in relation to the bill that we have enormous problems with. If you follow the actual process that is set out in the government's bill and look at the initiation of a restraining order under sections 17, 18, 19 or 20, where an application is made for an order pertaining to all or specified properties, then flowing from that, under section 312, the applicant bears the onus of proving the matters necessary for the making of the order. But once that order is put in place, one of two things can happen: a prosecution can proceed—and that is where the onus of proof has been reversed and the person has to prove their innocence—or, if no prosecution or action is taken in relation to the proposed offence, a forfeiture order can be carried out, under section 47 and section 49. This is the fundamental problem we have with the process that the government is putting forward.

During one of the committee hearings I asked one of the agencies—it would have been either the Australian Federal Police or the National Crime Authority—that, if a person was required to prove to a court how they obtained the particular property that was the subject of a forfeiture notice and the court set a period of time for that person to be able to provide the documentation to prove that they did purchase that property or that asset legally and prior to them being able to do that the time set by the court expired, what would then be the process? The answer was that the forfeiture would proceed. I then put the question: what right of appeal would the person have if they subsequently obtained the information that they needed to prove that they had purchased that property legally? Could they then approach the court and have the issue re-examined? The answer was no, because under this bill there is no process for a person to be able to do that.

For the benefit of the senators who are here, I will give an example of how such a situation could arise. To see this, we only have to look at the division of Berlin after the Second World War. As a result of the building of the Berlin Wall, people found that they had no access to property that they had previously owned. As we all know now, that wall has been removed. I personally know one person who has spent over 17 years getting the documentation for her parents' home. She has been successful, she did get that documentation and ultimately has been paid compensation from the government for the seizure of that property. The question I put to Senator Ellison is: under your legislation, where does the innocent person who cannot get the information that they require within the period that the court determines but who subsequently can get that information go with it? I believe the answer that I have been given is correct: they have got nowhere to go; there is no right of appeal. For that reason alone, this bill should be voted down.