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Monday, 23 September 2002
Page: 4642


Senator ELLISON (Minister for Justice and Customs) (4:19 PM) —The government will be opposing this amendment put forward by the Democrats. A number of issues have been raised, and I will deal with each in turn. Senator Ludwig mentioned the issue of no double jeopardy and, quite rightly, said that that term was in the heading. But the Democrats' argument has been along the lines of double jeopardy. Of course, in this case, instituting civil forfeiture proceedings against a person who has been acquitted of an offence to which the proceedings relate does not constitute double jeopardy. Double jeopardy relates to conviction—that is, where you have someone convicted and convicted again. That would offend the rule against double jeopardy. Double jeopardy does not prevent civil proceedings being brought against a person in relation to the same matter. So, for instance, you could have someone convicted of assault but then sued in tort for assault, and double jeopardy would not exclude that. I appreciate that that term is in the heading of the amendment but, as I understand it, the argument in this debate from the Democrats is along the lines of double jeopardy. So the government would make that distinction.

The government does not believe that civil forfeiture is a penalty in the sense that a term of imprisonment or a fine are. A civil forfeiture order requires the person to forfeit those assets that he or she cannot prove were lawfully obtained. This amendment would prevent forfeiture proceedings being brought against a person where the prosecution of that person failed for technical reasons unrelated to the guilt or innocence of that person. Of course, the presumption is there that a person is innocent until proven guilty, but we have seen situations where a case has been ruled out or where a person has been acquitted on a technicality. This scheme is designed to not wait for that conviction, where whilst waiting for it you could have the dissipation of assets, but also not preclude the forfeiture of assets where by some technicality someone has been acquitted and thereby they can still enjoy the fruits of their ill gotten gains. I also point out that New South Wales and Western Australia have similar forfeiture schemes and they do not provide for this aspect which the Democrats seek to provide by way of their amendment. I think the same applies to all those other states which are in the process of implementing similar schemes for civil forfeiture.

Senator Harris has just raised an issue dealing with the question of finding proof. Certainly, when you look at it, the onus of proof and the standard of proof is a civil issue. The onus of proof is on the DPP, which is bringing the action, to show that in the last six years a person has committed a serious offence which has resulted in a property which is under application or is the subject of application. Senator Harris says that somebody has to find that evidence of their ownership and that that can take some time. I point out to the Senate that there is a time provision of six months between the restraining of the property and the forfeiture. That in itself allows an individual time to get their case together. I submit that a court could simply adjourn its proceedings if someone says, `I need to get verification of this ownership,' or `There is a person I did business with overseas. I can't find them at the moment, but I need to find this person because they can swear an affidavit to say that they paid me this money for work I have done, and I just need time to get that.' In addition to that six-month period, I envisage that a court would be quite entitled to adjourn proceedings, allowing the respondent the ability to seek that evidence.

In relation to forfeiture and the question that Senator Ludwig raised with the Democrats—and it is a reasonable point—the bill provides that an acquittal is of no relevance to those forfeiture proceedings unless the forfeiture is as a result of a conviction. That is quite a different scenario. The government opposes this amendment on the basis that it would simply prevent forfeiture proceedings being brought against a person whose prosecution failed for a technical reason, and therefore someone who may have substantial assets as a result of criminal activity will escape forfeiture.