CLA is delighted that, after struggling for years by ourselves, an august journal like The West Australian is now backing our call to reform vicious property confiscation laws which penalise children and women. In doing so, The West is acknowledging the leading solo role of CLA’s WA Director, Rex Widerstrom, in standing by two children about to lose their home to the State.
Editorial: The West Australian, 9 July, 2012
Time to review draconian laws on confiscation of property
WA’s draconian property confiscation laws were undoubtedly well intentioned. They were designed to catch the Mr. Bigs of crime, particularly those involved in the drugs trade, and stop them enjoying the profits of their illegal activities by seizing property obtained through those activities.
But the application of the laws has had other consequences, spreading beyond the sharks of the drug trade and sometimes injuring innocent parties in the process.
The laws have come under fire from the High Court, which has described the legislation as poorly drafted and lacking coherence, as well as the Law Society of WA and Governor Malcolm McCusker, who has urged lawyers to push for changes.
The latest case where the laws have come into question concerns the teenage children of a drug trafficker who could be left without a home after the Supreme Court ordered it to be seized. It belongs to their mother who was declared a drug trafficker and jailed for six years in 2009. She had enough drugs to be automatically declared a trafficker and the court was obliged to order all her property be handed to the State.
The children’s appeal against the apparent injustice and unfairness of taking away their home due to the actions of someone else failed. The judge noted that arguments relating to fairness and justice and whether confiscation would cause hardship were not supported in the legislation.
It is of concern that any legislation should be so rigid that it leaves no legal room to move in trying to achieve a fair and just outcome. In this case, the children now face being evicted from their home when the younger of them turns 18 next year.
It is also concerning that property affected by the confiscation laws does not have to be derived from criminal activity. If a property is used in the perpetration of a crime and does not even belong to the offender, then property which does so can be seized, resulting in its loss by innocent parties.
One case where this almost happened concerned the wife of a man jailed for an offence involving underage sex. Totally innocent of any wrongdoing, she risked losing her and her children’s home after the State moved to seize her husband’s interest in it as a “substitute” for the property he “used” when he had sex with a 14-year-old girl in the shed at the girl’s parent’s property. The wife, who had battled cancer since her husband’s conviction and jailing, then endured a costly two-year battle to keep the house of which she was part-owner.
The case had been set for a High Court trial which would have tested the laws. But fortunately for the wife, an agreement was reached with the Director of Public Prosecutions in which the court case and the freezing order on the property were dropped.
There have been several other anomalous cases involving these laws. It is time for the Government to review them to determine how well they are fulfilling their original intent and to institute change where needed.