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Australia
This page considers the Australian proceeds of crime regimes,
centred on identification and seizure of assets gained
through drug trafficking but encompassing financial benefits
for convicted criminals from literary and film rights.
It covers -
The
following page look in more detail at Australian and overseas
restrictions on 'murderabilia'.
introduction
The Australian proceeds of crime regime involves federal
and state/territory legislation, reflecting the shape
of the national Constitution.
The legislation is founded on the premise that profits
from criminal activity should be returned to the society
whose laws were infringed and that property lawfully obtained
but used in the commission of the offence or offences
could also be forfeited. It is conviction-based, ie forfeiture
of assets and pecuniary penalties can only follow conviction
for a criminal offence.
It builds on traditional asset confiscation schemes, in
particular seizure of property under the Customs Act
1901. It also reflects international obligations
(such as those under the 1988 United Nations Convention
against Illicit Traffic in Narcotic Drugs & Psychotropic
Substances, the Council of Europe Convention
on Laundering, Search, Seizure & Confiscation of Proceeds
of Crime and bilateral Mutual Assistance in Criminal
Matters treaties) regarding "a capacity to trace,
freeze and forfeit proceeds of crime, including crime
committed overseas".
The federal Proceeds of Crime Act 2002 (POC
Act) gives courts the power to restrain and confiscate
assets of persons who have engaged in serious criminal
activity, or whose property is the proceeds of a criminal
offence. It also allows the federal Minister for Justice
& Customs to approve use of those funds for crime
prevention, law enforcement, drug treatment and drug diversion
programs.
From 2003 to 2006 some $17 million was confiscated. (The
Northern Territory Government reported in 2005 that it
had seized over $2.5 million under its Criminal Property
Forfeiture Act in 2003-05.)
The Act is complemented by Division 3 of Part XIII of
the Customs Act (CA),
which permits a pecuniary penalty order regarding 'prescribed
narcotic dealings', irrespective of whether the person
against whom the order is sought or made has been convicted
of (or even charged with) the offence.
The federal legislation embodies a regime that permits
assets to be located and restrains dealings with those
assets pending the making of a final forfeiture or pecuniary
penalty order. It reflects international obligations regarding
tracing, freezing and forfeiture of crime proceeds, including
crime committed overseas (eg the 1988 UN Convention
against Illicit Traffic in Narcotic Drugs & Psychotropic
Substances and bilateral treaties on mutual assistance
in criminal matters).
The initial state 'conviction-based' enactments were -
- Crimes
(Confiscation of Profits) Act 1985 (NSW)
- Crimes
(Confiscation of Profits Act) 1986 (Vic)
- Crimes
(Confiscation of Profits) Act 1989 (Qld)
- Crimes
(Confiscation of Profits) Act 1986 (SA)
- Crimes
(Confiscation of Profits) Act 1988 (WA)
- Criminal
Property Confiscation Act 2000 (WA)
- Crimes
(Confiscation of Profits) Act 1993 (Tas)
- Crimes
(Forfeiture of Proceeds) Act 1988 (NT)
- Criminal
Property Forfeiture Act 2002 (NT)
-
Proceeds of Crime Act 1991 (ACT)
Most
states have since extended their regimes to encompass
confiscation on the basis of civil offences. Current legislation
includes -
- Confiscation
of Criminal Assets Act 2003 (ACT) | here
- Criminal
Property Forfeiture Act 2002 (NT) | here
-
Confiscation of Proceeds of Crime Act 1989
(NSW) | here
- Confiscation
of Proceeds of Crime Amendment Act 2005 (NSW) |
here
- Criminal
Assets Recovery Act 1990 (NSW) | here
-
Criminal Proceeds Confiscation Act 2002 (QLD)
| here
-
Criminal Assets Confiscation Act 2005 (SA)
| here
- Crimes
(Confiscation of Profits) Act 1993 (Tas) | here
- Confiscation
Act 1997 (Vic) | here
-
Criminal Property Confiscation Act 2000 (WA)
background
The federal and state legislation originated in a 1983
invitation by the Australian Police Ministers Council
(APMC) to the Standing Committee of Attorneys-General
(SCAG) to develop legislation allowing for forfeiture
of criminally-derived assets.
A proposal developed by an APMC working party was endorsed
by a resolution of the Special Premiers Conference on
Drugs in 1985, with model legislation prepared by the
Parliamentary Counsels Committee as the basis for uniform
legislation across Australia. Each jurisdiction however
introduced its own legislation between 1985 and 1993,
for example the federal Proceeds of Crime Act 1987
(here).
The 1987 federal POC Act was strengthened in 2001, as
the Proceeds of Crime Act 2002. That enactment
extended coverage to "indirect proceeds", including
book and magazine deals (royalties and one-off chequebook
journalism fees), television appearance fees and film
rights.
It reflected criticisms, notably in the 1999 Australian
Law Reform Commission Confiscation That Counts
report, that existing laws were
not fully effective. In particular they have failed
to impact upon those at the pinnacle of criminal organisations.
With advancements in technology and globalisation, such
persons can distance themselves from the individual
criminal acts, thereby evading conviction and placing
their profits beyond the reach of conviction based laws.
The
scope of the Australian regimes has raised criticisms,
with the WA Criminal Property Confiscation Act 2000
for example authorising that state's Director of Public
Prosecutions to apply to a court for an 'unexplained wealth
declaration' against a person, with the court declaring
that the person has unexplained wealth if it is more likely
than not that the total value of the respondent's
wealth is greater than the value of the person's lawfully
acquired wealth.
literary rights
The objectives of the federal POC Act include -
(b)
to deprive persons of literary proceeds derived from
commercial exploitation of their notoriety from having
committed offences
(c) to punish and deter persons from breaching laws
of the Commonwealth or the non-governing Territories
(d) to prevent the reinvestment of proceeds, instruments,
benefits and literary proceeds in further criminal activity
The
2006 review of the POC Act (aka Sherman Report) commented
that
The
literary proceeds provisions of the Act have not been
utilised to date so it is not possible make any assessment
of the impact or effectiveness of the Act in this regard;
other than to observe that tthe provisions may be having
some deterrent effect.
The
state/territory governments do not appear to have used
their legislation to seize assets of criminals (or associates)
accrued through cheque-book journalism or through merchandising
of posters, t-shorts and even stubbie holders.
Speculation about confiscation of payments for television
appearances, film rights or autobiographies by figures
such as Schapelle Corby thus remain speculation.
studies
There has been no comprehensive studies of literary rights
as a subject of the Australian proceeds of crime regimes.
Historical information is provided in the 1999 Australian
Law Reform Commission report
Confiscation That Counts: A review of the Proceeds
of Crime Act 1987, 2006 federal Independent Review
of the Operation of the Proceeds of Crime Act 2002 (Cth)
report
and Brent Fisse's 'Confiscation of Proceeds of Crime:
Funny Money, Serious Legislation' in Criminal Law
Journal (1989) and 'Confiscation of Proceeds of Crime:
Discretionary Forfeiture or Proportionate Punishment?'
in Criminal Law Journal (1992).
Works on Australian money laundering studies and practice
are highlighted here.
For restitution see Restitution Law in Australia
(Sydney: Butterworths 1995) by Keith Mason and J W Carter
and other works on the law of obligations such as Rosalie
Balkin & J Davis' Law of Torts (Chatswood:
LexisNexis Butterworths 2004).
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