Proceeds of crime and unexplained wealth laws allow government to confiscate what’s deemed property used in or garnered from illegal activities, as well as finances regarded as sourced unlawfully, and, at times, these measures can be applied without any accompanying convictions.
Laws relating to the seizure of crime assets operate in all nine Australian jurisdictions.
Parliaments around the country began rolling them out in the mid-1980s, with the stated aim of punishing the “Mr Bigs of crime”, as well as acting as a strong deterrent to further criminal activities.
A major development in these laws came with the Turnbull government’s 2018 changes to the federal unexplained wealth confiscation regime, so it now includes nationwide cross jurisdictional collaboration in seizing criminal assets without the need of a criminal conviction.
The scheme has been facilitated by state governments passing their own legislation to enable their participation, which contains lists of state offences that trigger unexplained wealth seizures, as well as providing for involvement in a national cooperative, where the profits are pooled and divvied up.
However, critics of criminal confiscation laws assert that rather than targeting the higherups of organised crime, these laws often impact low-level criminals, as well as the families of those convicted of crimes, and the legislation is now being used to silence political dissent.
Anyone but the bosses
“Guilty until you prove yourself innocent. Reversing the burden of proof. Convicted because the government says you are guilty or doesn’t like you or that you protest in public,” said Civil Liberties Australia (CLA) president Bill Rowlings, as he listed the faults of criminal confiscation regimes.
“It’s the new legal approach which all governments have been weaselling into law across many areas for quite some time,” he told Sydney Criminal Lawyers.
According to Rowlings, if proceeds of crime legislation achieved what it was ostensibly enacted to do, no one would have an issue, as we’d be seeing the heads of criminal networks being sanctioned. However, too often, these laws are being misapplied.
The case of Perth resident Tam Nguyen is a prime example. Nguyen’s husband, Phi Van Tran, left her to live with another woman in 2005. He believed he’d signed the house over to her at that time, and he’d stopped contributing to the mortgage payments in 2010.
Yet, two years later, after Tran and his new partner were convicted of drug trafficking, the court found that local laws left it with no choice but to issue a confiscation notice in relation to the property where Nguyen was raising her children.
“In every parliament, when they were introduced, pious politicians stood up and said almost identical words: these laws will only be used to target the Mr Bigs of crime,” Rowlings continued. “Well, that’s now a 20-year lie.”
The laws in NSW
The Confiscation of the Proceeds of Crime Act 1989 (NSW) provides for property derived from or used in the commission of a serious offence to be seized, upon an individual’s conviction.
The Act contains three types of confiscation orders: forfeiture orders that concern property, pecuniary penalty orders, which require a convicted criminal to pay a financial penalty, as well as drug proceeds orders that serve to seize the benefits an offender has received via drug trafficking.
NSW police are also able to issue freezing orders in relation to those charged or convicted, which allow for the seizure of “tainted property”, while the NSW Supreme Court can issue a restraining order that forbids a defendant to dispose of suspect property.
Recently, NSW police placed a freezing order upon a climate activist’s station wagon, after she’d been convicted on suspicion of being involved in a series of nonviolent direct actions targeting the Newcastle Coal Port.
The 26-year-old woman, who was sentenced to a 24-month community correction order, had been living out of the vehicle at the time of her arrest.
“The targeting by NSW police of the young female protestor shows just how much, and how far, such laws can be abused,” stressed Rowlings.
“The laws were originally passed to make it easier for police to catch big-time criminals, but if you give police excessive powers, they’ll eventually be abused.”
The Criminal Assets Recovery Act 1990 (NSW) also operates in this state. It allows the NSW Crime Commission to confiscate property – without conviction – if the Supreme Court finds it “more probable than not” that the person in its possession has engaged in serious crime-related activities.
An unfair Act
Former WA Chief Justice Wayne Martin delivered his damning report into the Criminal Property Confiscation Act 2000 (WA) in 2019. Within it, he outlined that its laws, “as presently drafted”, have “the undeniable potential to inflict injustice, and to operate arbitrarily and unfairly”.
The ex-top judge outlined that the Act sets up “two classes of justice”, with different rights and legal obligations applying in terms of what property has been seized or which order has been imposed to confiscate it, and there’s no discernible reason for its divergence in approach.
Two cases were cited as a misapplication of the laws. One involved an older couple having their house confiscated over allowing their adult son to store cannabis its the roof, while the other saw an attempt to seize the house of a woman formerly married to a man she hadn’t seen for 11 years.
“Martin found the laws were atrocious and had to be rewritten from scratch. Not even amending would do, as the laws were so unfair and persecutorial,” explained Rowlings. “Now, four years after the initial report was commissioned, nothing has happened.”
A nice little earner
One reason why jurisdictions may not be rushing to change their proceeds of crime regimes is that they turn a tidy profit. Rowlings advises that governments are actually hiring extra lawyers in Director of Public Prosecutions offices, who are charged solely with producing seizure revenue.
Then ACT attorney general Gordon Ramsay announced in early 2018 that the territory’s DPP office was to receive close to $1 million over two years, to fund the hiring of three new prosecutors and extra staff with a focus on seizing criminal assets.
The staff were sure to pay for themselves, he said, as ACT Policing was providing increased proceeds of crime referrals. And the DPP stated that under the situation prior to the funding increase, he could only afford two part-time lawyers that couldn’t keep up with the confiscation workload.
“Governments should not be staffing prosecutor offices on the basis of which legal prosecutions bring in most revenue,” Rowlings concluded.
“Governments are turning the laws into nice little earners, and also victimising people they don’t like, as in the case of the female protestor.”