Civil Forfeiture of Criminal Property

Civil Forfeiture of Criminal Property

Legal Measures for Targeting the Proceeds of Crime

Edited by Simon N.M. Young

In this book, which is the first of its kind, leading experts examine the civil and criminal forfeiture systems in Australia, Canada, China, Ireland, South Africa, the United Kingdom and the United States. In the fight against organized crime and international money laundering, there is a global trend for countries to enact forfeiture and confiscation laws that are applied through the civil process rather than the traditional criminal justice system. The authors gathered here analyze the appeal these civil forfeiture laws have for governments for their potential to disrupt criminal organizations and for their quantifiable benefits to the state. But without the usual safeguards of the criminal process, civil forfeiture laws are controversial, attracting constitutional challenges, particularly on human rights grounds.

Chapter 5: Civil Forfeiture – The Australian Experience

Sylvia Grono

Subjects: economics and finance, economic crime and corruption, law - academic, corruption and economic crime, criminal law and justice, finance and banking law, human rights, politics and public policy, human rights


Sylvia Grono* INTRODUCTION Australia is a federation of six states and two territories. The federal government (the Commonwealth) and each state and territory have criminal law powers. The Commonwealth, five of the six states, and both territories have in recent years passed laws providing for the forfeiture of assets and the imposition of pecuniary penalties in relation to criminal conduct which has not been proven to the criminal standard in a criminal court.1 There is no single Australian model. The Australian Constitution prescribes the powers of the Commonwealth to legislate and also sets out some basic rights. There is no Commonwealth Bill of Rights but the common law has recognized a number of basic rights and Australian Courts will not construe statutory provisions as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.2 * The views expressed herein are the author’s personally and do not represent the views of the Australian Government or the Commonwealth Director of Public Prosecutions. 1 See Proceeds of Crime Act 2002 (Cth) (hereinafter POCA); Criminal Assets Recovery Act 1990 (NSW); Criminal Property Confiscation Act 2000 (WA); Criminal Proceeds Confiscation Act 2002 (Qld); Criminal Property Forfeiture Act 2002 (NT); Confiscation of Criminal Proceeds Act 2003 (ACT); Criminal Assets Confiscation Act 2005 (SA). Tasmania has not passed civil forfeiture legislation; it has legislation providing for forfeiture of the proceeds of crime but it is solely conviction based: Crime (Confiscation of Profits) Act 1993 (Tas). 2 See...

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