UPDATED – SPECIAL REPORT:
Australia’s property seizure laws
hitting wrong targets: major
national legal reform needed

Evidence is proving federal and state governments are hitting the wrong targets, the wrong way, in their attempted crackdown on major drug and other crime. Instead of confiscating the property and assets of the Mr Bigs of crime, it’s the Little Woman and her Children who are suffering under the nation’s most draconian and ill-considered laws. National reform and rewrite of the laws is needed now, CLA says.

SPECIAL REPORT: Confiscation and seizure laws

Australia’s property seizure laws hitting wrong targets: major national legal reform needed

One of the benefits of federation is that systems and laws can be trialed in one state, then adopted by another state or by the commonwealth in a gradual filtering process that theoretically allows the cream of regulation to rise to the top.

That’s how Australia used to be: states taking it in turns to innovate in different areas according to local conditions and needs, then other states adopting proven innovations after years of trial and error.

But for some time now bureaucrats and the executive managers of governments – Prime Ministers, Premiers and Ministers – have been colluding by way of processes that are not in the Australian Constitution to over-rule, bypass or go around the various parliaments.

They meet in “ministerial councils*” involving federal and state ministers, and make decisions effectively binding on the nation, because they produce agreements leading to “model” litigation which is then “mirrored” in all other jurisdictions.

Sometimes the process works well to cut through federation-founded red tape, and get things done more efficiently than otherwise. Sometimes, though, it goes off the rails.

Most problems seem to occur when the these councils-of-states react to media frenzy, or when one side of the bureaucracy (police and security advisers, say) gains ascendancy over balanced and measured thought and debate.

One distinct area where these processes have produced laws that are going too far in the wrong direction are with seizure and confiscation offences. In principle, they aim to target the Mr Bigs of crime, particularly drug crime. In practice, in many cases the laws have been badly misused, or even abused, by justice departments and prosecutors turned rabid in pursuit of not Mr Bigs, but the little guy…or even worse, the little woman and her children.

This special report by CLA – with considerable help from other similar groups, legal bodies and individuals – outlines what has gone and is going wrong with seizure and confiscation laws.

They are “breathtaking” in their reach, and “draconian” in their construction. These are not CLA words, but the words of a judge having to decide a case where “the law” had become a wild beast, out of control.  (See A law too ‘wide reaching for even Dracos’…)

* The best-known “ministerial councils” are COAG (the Council Of Australian Governments, which involves the Prime Minister and the Premiers), and SCAG (the Standing Committee of Attorneys-General, made up of the AGs of Australia and New Zealand). However, there are more than 40 of these “council” bodies where the people sitting on them are un-elected and largely un-accountable for what they do and what they decide, because any disapproval of a decision can be sheeted home to the other states’ ministers. More worryingly, the councils are ‘managed’ by bureaucrats with no need to consult the community and no accountability for their secretive advice and actions to 90% of the people on the councils they serve.

Two years’ potential sentence triggers draconian double jeopardy

Seizure and confiscation offence legislation operates in all States, in the Territories and in Commonwealth legislation.

In most cases, you can have your property and assets seized for offences with the potential of a sentence of two years or more.

Note, that is not where the convicted person must be actually sentenced to two or more years behind bars: no, the laws merely state that the convicted person could have been sentenced to two years or longer.

Therefore – as in the case of Lloyd Green in Darwin (see below) – if an average joe serves a short home detention sentence, or even if given a wholly suspended sentence, he or she could still lose everything they own and have a $1m debt as well.

Loss of assets can be instant, without notice.  Under some legislation, a person suspected of committing an offence which might trigger property seizure provisions can have all their assets frozen instantly by a judicial warrant of which they are totally unaware.

Authorities do not have to alert the suspect that the state is seeking a freezing order.

The result can be that wives suddenly can’t access ATM machines to buy groceries, the children’s school fees can’t be paid, and regular outgoings like mortgages or car payments can’t be met.

“Even if the laws are meant to restrict the activities of the Mr Bigs of crime and the drug bosses, they are not meant to penalise wives and young children instantly, without a hearing and with no recourse to a quick resolution of what can be dire restrictions,” CLA CEO Bill Rowlings said.

WA:

Confiscation laws ‘unfair’, law society president says

The president of WA Law Society said (June 2011) the state’s crime confiscation laws were absolutely draconian: he called for change.

Criticism in the West echoes calls in the NT for a review of local property seizure laws, as well as a re-think of a system in which Aborigines can lose their cars for minor alcohol offences.

WA’s Hylton Quail called the laws dated and unfair after the High Court ruled that convicted murderer Gary Ernest White’s life savings of $135,000 would be seized. White is serving a life sentence for the wilful murder of Anthony Tapley at a trucking yard in Maddington, Perth, in 2001.

The WA Director of Public Prosecutions wanted to seize the trucking yard but could not because White did not own the property, the ABC reported. The DPP then applied to confiscate his bank savings of $135,000 as a substitute: a full bench of the High Court ruled the DPP could do so.

Mr Quail said: "I’ve got clients for example who have committed admittedly serious criminal offences on a property which they own – one within the confines of a winery which a person had built up over their entire lives,…and, at the age of 65, now stands to lose the whole winery because an offence was committed in the winery."

White’s lawyer Gary Massey said the decision had widespread ramifications because anyone convicted of a serious offence could now lose their assets. "It’s gone one step further because there were certain criteria that had to be met under the Act before you could have your assets forfeited; for example, you’d have had to use your property in the commission of an offence or alternatively been convicted of an offence which left yourself open to being a drug trafficker," he said.

"What you now have is that you (could lose) your property in the commission of an offence…but if you use someone else’s property in the commission of an offence, then you leave yourself open to having your own assets seized." http://tiny.cc/1mbg2

Mother found guilty, children penalised

The Criminal Property Confiscation Act legislation of 2000 was sold as targeting the “Mr Bigs” and the bikie gangs but in fact the former are unscathed and the latter barely touched, WA CLA Convenor Rex Widerstrom reports.

“MPs were warned when it was passed a decade ago that it was poorly drafted and would come back to bite them. Already a High Court judge has said it’s confusing and contradictory,” he said.

“It would be interesting to know how many MPs who were in the 2000 Parliament still stand by the Act they passed.”

He gave the example of a woman who bought her home legitimately in the 25 years she spent drug/crime-free while raising three children. She went off the rails and was caught with sufficient methamphetamine to be automatically classed a trafficker – even though much of it was for herself and the rest, typically of addicts, could have been sold to fund her addiction.

Her three children – two still of school age – now live in the house alone as their mother is in jail. The eldest works and pays the mortgage, rates and outgoings and cares for his siblings…but they stand to have the WA Government take the house away from them.

“The DPP has offered not to seize the house till the youngest completes education, but whichever way you look at the situation, it amounts to double punishment…for her, and single punishment for the children for a crime where they are totally innocent.

“Of course if she was wealthy and had a family trust set up, she’d have been fine. That’s how the real criminals, the Mr Bigs, avoid the legislation, whereas it targets the relatively petty criminal man and woman, and their children,” Mr Widerstrom said.

Calls for changes to confiscation laws

A Perth mother lost her legal fight late in June 2011 against the seizure of her family’s $900,000 home under the state’s tough property confiscation laws.

The woman – not identified in public – owned the Lesmurdie home with her husband who was convicted of cultivating cannabis in a shed on the property. He was fined $6,000 but the state then sought to confiscate the house where the couple live with their two sons, 6 and 9.

The woman says she knew nothing about her husband’s activities and argued in the Supreme Court she and her sons would suffer undue hardship if they lost the house. Justice Michael Murray accepted the woman and her children were innocent parties but rejected her attempts to put a stop the seizure. He did order that the woman receive payment for her half share in the house when it is sold. Lawyers for the woman are considering appealing against the court ruling, ABC News reported.

President of WA’s Law Society, Hylton Quail, says the state’s crime confiscation laws are the most draconian in the country and are unduly punishing innocent third parties. The tough property confiscation laws are unfair and need to be amended, he says.

"There have been a number of instances where innocent third parties have found themselves in a terrible situation in danger of losing property through no fault of their own but this Government and the last Government have done nothing about it," he said.

"The criminal property confiscation laws in Western Australia are the most draconian in the country, in fact, some would say the most draconian in the world. There are no proper protections for innocent third parties and the law needs to be changed."

The State Opposition has backed the calls for amendments. Shadow Attorney General John Quigley says the laws should change. "If you allowed a discretion to exist within the courts to look at justice, I think the problem could be largely alleviated," he said.

In a statement, the Attorney General Christian Porter says only the offender’s half of the property will be confiscated but he concedes the laws will impact on the wife.

http://www.abc.net.au/news/stories/2011/06/27/3254153.htm

Now even State Governor speaks out in favour of changing the law … Read The West report »…

NT:

Territory seizure laws penalise the poor as well as rich

In the NT, another case – Dickfos – looks certain to also reach the High Court to contest issues related to property seizures under Territory legislation.

The Territory has unique problems in that the laws penalise the poor as well as the rich: for example, property – including the vehicles of Aborigines living in remote communities – can be seized under a number of acts, as Phillipa Martin, Managing Solicitor – Civil Section of the North Australian Aboriginal Justice Agency, explains:

Criminal Property Forfeiture Act – provides for the seizure and forfeiture of “crime used” and “crime derived” property. Forfeiture offences are those which are punishable by imprisonment of two years or more. Police or prosecution may apply for forfeiture.

Kava Management Act – regulates the licensing of kava, provides for offences for trafficking of kava and for forfeiture of kava and vehicles for offences under the Act. Once seized and if no proceedings have ensued or the person is found not guilty, the owner is then invited to apply to have it returned. Application is to the NT Licensing Commission.

Liquor Act – cars can be seized and then forfeited to the state if they have been used to bring liquor into restricted areas. Once the car has been seized (usually by the police), it is up to the owner to apply for it to be released. If no application is made, the property is forfeited.

“You can appreciate why someone trying to smuggle 50 cartons of beer into a NT Aboriginal community might reasonably have a vehicle confiscated,” CLA CEO Bill Rowlings said. “But reports indicate that people carrying in a couple of beers in their cars have fallen foul of these excessive laws.

“You have to question the judgment – and the humanity – of prosecution directors in some jurisdictions who appear ready to leave fathers and families penniless in circumstances, like Greens, where there’s no ‘Mr Big’ of crime involved.

“It’s worth following the money trail, to see whether prosecutors and justice departments benefit unreasonably from their over-zealous prosecution decisions and activities. In some cases they can benefit directly from the confiscated cash, or indirectly in the form of equipment or service benefits.”

Mr Rowlings said that the wealthy were starting to become aware how much at risk they, their families, their homes and their assets were.

“The big end of town is only now realizing that a recalcitrant teenage or young adult child, who grows marijuana down the back of the big suburban block, or who uses cocaine on the property when the rest of the family is on holidays, could cost the family its home and its assets.

“These laws were designed for the Mr Bigs of crime, but the Mr Bigs are not the ones suffering: prosecutors are trying to screw down on average joes whose offences most people would consider to be at the minor end of the scale.

“For example, Lloyd Green in Darwin faced a debt of $1.2m after already losing an apartment and a bush block he owned, just for a one-off, first offence of growing a handful of marijuana plants.” 

A law too ‘wide reaching for even Dracos’…

In the Northern Territory, Supreme Court Justice Dean Mildren savaged the “draconian” nature of the law he was being asked to rule on.

His comments came as he outlined some of the problems with seizure laws in the full bench appeal by Lloyd Green against a single judge’s finding that Green was responsible for the full value – $1.5m – of the leased property on which he grew marijuana plants in a container.

For the marijuana offence, Green was sentenced to two years*, commuted to home detention for six months. But, after serving his sentence, he faced losing an apartment and a bush block he owned worth a total of about $300,000…and, even after surrendering those assets, being left still owing a further $1.2m.

In delivering the judgement for Green (that he was liable for the value of the lease only on the property where he grew the pot, not the value of the land), Mildren J. said:

“There is no question that the offences which the respondent committed were ‘forfeiture offences’.

“The sheer breadth of the definition of ‘forfeiture offence’ is breathtaking. A list of the Northern Territory offences punishable by a term of imprisonment for two years or more was provided by counsel for the respondent. The list ran to 27 pages covering as it did a very wide range of offending against numerous Acts, a good many of which were triable only summarily.

“The list contained only Northern Territory Acts and was not in fact complete as it did not deal with, for example, the Corporations Act; nor did it deal with Commonwealth offences or offences made under the laws of other states or territories. The extremely wide definition of a forfeiture offence gives rise to the real possibility that even relatively trivial offences may give rise to forfeiture of very valuable property.

“The wide definition of crime-used property, particularly in s 11(1)(c), gives rise to the possibility that what may be forfeited, for a relatively trivial offence, may be the offender’s own home if an act or omission was done in connection with the commission of a forfeiture offence on the offender’s own property.

“If the offence was committed on someone else’s property in which the offender had no interest, the offender may be liable for a crime-used substitution declaration under s 81 of the Act. The consequences of such a declaration are that the Court must value the crime-used property at its full market unencumbered value, and order the offender to pay that sum to the Territory under s 81(4)(c). The amount ordered to be paid may be satisfied by forfeiture under Part 7 of the substituted property: see ss 86(1) and (3); s 101.

“In this case, the results could well be a judgment for $1.5 million and possibly forfeiture of the respondent’s land worth about $310,000. Allowing for any mortgagees to be paid out, the resultant debt would be well in excess of $1 million.

“The Act has been described by both counsel as draconian in its reach. I doubt whether even Dracos himself would have conceived of a law so wide reaching. The questions of construction which we are asked to consider are therefore matters of extreme importance.”

• An irony of the Green original sentence was that a virtually identical set of circumstances in Tasmania around the same time produced a sentence of three months, entirely suspended, and with no seizure consequence. Justice weighs differently depending on where you live.

SA:

Seizure laws start states on a slippery slope…

In South Australia, penalties and provisions are being beefed up under the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill 2011, now (June 2011) before the parliament.

The laws and amendments look fine to naive legislators who assume they will be administered even-handedly and fairly. But that’s not the likely reality, as out-of-control justice department bureaucrats and prosecutors can use such laws as clubs to beat up people who are not the “crime bosses” the laws were supposed to target.

No-one wields new-found power more oppressively than petty bureaucrats. The recent history of seeming abuse of process – by officials – elsewhere in Australia does not hold much hope that amendments in SA will be equitably implemented in the future.

For example, s24 of the bill gives the DPP in SA the right of perennial persecution. It says

24—Amendment of section 96—Additional application for pecuniary penalty order

             …        (3)        Section 96—delete subsection (3) and substitute:

(3)     Except as provided in this section, nothing prevents the DPP from making more than 1 application for a pecuniary penalty order against a person in relation to a serious offence.

And, never mind actuality or traditional legal rights relating to property, another section allows an “effective” judge to create his or her own reality:

25—Insertion of section 98A
98A—Property subject to a person’s effective control

For the purposes of this Division, the court may treat as property of a person any property that is, in the court’s opinion, subject to the person’s effective control.

Then there’s the “slush fund” potential of such dangerous legislation. For example, the Attorney-General – alone, solely – in SA will be able to creatively allocate money from what will be a flush and growing investment account anywhere within his portfolio he or she likes, with very few restrictions. You could drive a Collins submarine through clauses 5 (a) and (b) below, which would easily allow the AG to make money available for massages for old, infirm, hard-of-hearing-and-heart judges, for example.  Clause 7 means the AG and the Treasurer can agree to take a punt on racehorses and breeding studs, or the investment accounts of the Labor (or Liberal) parties.

209A—Credits to Justice Resources Fund
    (1)     The Justice Resources Fund (the Fund) is established.

 …     (4)    Subject to any direction of a court under this Act, any proceeds of confiscated assets of a prescribed drug offender must be paid into the Fund.

… (5)     The Fund may be applied by the Attorney-General (without further appropriation than this subsection) in the absolute discretion of the Attorney-General for the following purposes:

   (a)     for the provision of courts infrastructure, equipment or services;

   (b)     for the provision of programs and facilities within the justice system for dealing with drug and alcohol related crime.

… (7)     The Attorney-General may, with the approval of the Treasurer, invest any of the money belonging to the Fund that is not immediately required for the purposes of the Fund in such manner as is approved by the Treasurer.

“Once states start to bend the traditional rule of law to borderline purposes, they run the risk of breaking the nexus between principle and propriety…which is what such seizure and confiscation laws are doing to all jurisdictions in Australia,” CLA CEO, Bill Rowlings, said.

ACT

Yet another High Court challenge seems likely to emanate from the ACT. There, a man convicted of growing 37 marijuana plants looks likely to lose his home, valued at more than $350,00, unless the appeal succeeds.

The challenge will be based on two claims: the ‘Kable principle’ already laid down by the High Court, and the avoidance of double jeopardy, which is guaranteed by common law and the ACT’s Human Rights Act. 

In 2009, David Sean Deane grew the plants in his double garage and basement, using a hydroponics system: he was convicted in August 2010 and ordered to undertake weekend detention for six months, with a further 18 months sentence suspended.

Early in 2011 the ACT Director of Public Prosecutions gained a restraining order on the Deane property, but the potential challenge has halted what would have been an automatic loss of the property two weeks after the Supreme Court order took effect.

Deane’s solicitors, Kamy Saeedi Lawyers, have advised the attorney-general of all states and territories and the Commonwealth of the High Court challenge, as they are required to do on a constitutional issue.

The 1990 High Court Kable decision, in short, was that a non-judicial Supreme Court determination (ie,  maybe forfeiture or property, Deane’s lawyers argue) was in conflict with Chapter III of the Australian Constitution, which limits courts to judicial – not executive or administrative – functions. The Kable decision is so recent, in High Court terms, that the limits of its impact are not yet readily apparent.

The other claim, re double jeopardy, may have generic impact in that counsel will likely argue that taking property following a jail sentence is a double penalty, which offends traditional concepts under common law throughout Australia.

However, as well, there is a specific provision in the ACT Human Rights Act – operating from 1 July 2004, and the first such ‘state act in Australia – which prevents a second penalty for the same offence, counsel will argue. The act says:

24 Right not to be tried or punished more than once
No-one may be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with law.
The matter is next scheduled for hearing next in the ACT Supreme Court in October 2011.
– adapted from Canberra Times, p2, 21 Jun 2011: Corbell considers involvement in drug house case’

QLD:

Millions confiscated from Gold Coast drug baron

In Queensland this year (2011), the confiscation powers under proceeds of crime legislation appear to have achieved the purpose for which they were designed…in one case at least. Part of the multi-million-dollar fortune of a Gold Coast drug baron jailed six years ago was handed over to the state’s Crime and Misconduct Commission (CMC).

It appears to be the first successful use by the state of new powers legislated nine years ago in the Criminal Proceeds Confiscation Act 2002. That act superseded an act then just three years old, as jurisdictions around Australia went on a campaign against the property and assets of the Mr Bigs of crime, particularly those they claimed were drug barons and bikie bosses.

Marissa Calligeros reported on the brisbanetimes.com.au website:

Charles Edward Cannon, a 51-year-old former Finks outlaw motorcycle member, is currently serving a 13-year jail term after police busted his amphetamine trafficking syndicate.

Cannon’s $27 million fortune has been the subject of Queensland’s largest and longest-running civil confiscation case since the CMC restrained his Paradise Point waterfront mansion, a Jaguar car, two luxury catamarans, cash, shares and jewellery in 2005.

In the Brisbane Supreme Court (8 April 2011), Justice Peter Applegarth handed $4.2m of Cannon’s property, which he found to be proceeds of crime, to the CMC.

CMC financial investigations director John Richardson said the case against Cannon was the first proceeds of crime action taken under new powers afforded to the watchdog with the introduction of the state’s Criminal Proceeds Confiscation Act in 2002. “We will seek to recover the $4.2 million from his property,” he said.

Cannon was found guilty of producing and trafficking amphetamines following an 18-month joint crime operation involving the Australian Crime Commission, the Queensland Police Service and the CMC. For eight years, the 51-year-old bikie hired drug runners to buy thousands of boxes of cold and flu medication, which he then converted into amphetamines.

“Our work also generates vital intelligence, leading to successful multi-agency investigations, such as the Cannon case, which have disrupted and dismantled major crime syndicates,” Mr Richardson said. “So it’s not just about hurting individuals, but ultimately denting the very power base of organised crime.”

http://tiny.cc/ycg8v

VIC:

The Act

The current seizure and confiscation law operating in Victoria is the Confiscation Act 1997.

The Act was introduced in 1997 (assent 23 Dec 1997, however the substantive provisions did not commence until 1 July 1998) to replace the Crimes (Confiscation of Profits Act) 1986. The law has since been amended numerous times.

The most recent amendment was the Statute Law Revision Act 2011 which was assented to on 21 June 2011 and commenced on 22 June 2011.

Comments publically made

At the time of its introduction, the AG stated in the second reading speech before Parliament that:

The bill repeals the Crimes Act 1986 and replaces it with a clearer, more effective assets confiscation scheme. The reforms are directed at these key objectives:

• to improve the operation of existing provisions to enable law enforcement authorities to more readily identify, track and confiscate proceeds of crime, particularly in relation to serious crimes where large amounts of profit are generated;,/
• to broaden the scope of the legislation so that it captures accumulations of wealth derived from long-term criminal activity and combats a broader range of profit-motivated crime. Confiscation procedures have traditionally been viewed as a weapon against drug trafficking and have focused on the fruits of individual offences.
• While this will remain an important focus of the legislation, confiscation procedures can apply to any indictable offence which has occasioned a profit. The legislation will also apply to some summary offences where there exists the potential for financial gain, such as the selling of native plants and wildlife; and
• to enhance the range of effective restitution mechanisms for victims of crime by enabling criminally acquired assets to be restrained and preserved for ultimate restitution to victims of crime.

A central aspect of the reform package is the establishment of the Assets Confiscation Office (ACO), which will be responsible for coordinating key areas of the confiscation process, managing restrained assets and ensuring that confiscation orders are properly enforced.

The President of the Law Institute of Victoria, Mr David Faram, publically criticised the Confiscation Act, describing it as draconian , and said it breached the presumption of innocence. Mr Faram said

"The presumption of innocence means that a person is deemed innocent until the State can prove their guilt before an independent court of law. Reversing the onus of proof means a person is deemed guilty unless he or she can prove they are innocent."

In 2010, then Premier Brumby stated that more than $53 million in assets were seized in Victoria. This included $45million in real estate, $6.7 million in cars, boats, cash and other chattels and $1.5 million in shares.

Operation of the Confiscation Act

Under the criminal charge based provisions, the DPP can apply to forfeit a person’s property if the police believe there are reasonable grounds to believe that the property is tainted by certain offences (such as serious drug or theft). This provision applies if a person is charged or convicted of certain offences. The range of offences is large and broad, including: any indictable offence, serious drug and serious theft.

In recent years more offences have been added to the list (including scalloping in Port Phillip). If a person is convicted of certain offences (such as serious drug or theft), the automatic forfeiture provisions apply. This provision extends the scope of property to include property the person has an interest in. There is no requirement for a court order, time limits cannot be extended and it is very difficult to have property excluded from an automatic forfeiture order or to get property returned.

Under the civil forfeiture provisions, the DPP can apply for a person’s property to be forfeit if the police believe there are reasonable grounds to believe that the property is tainted by certain offences (such as serious drug or theft). The police need not inform the person. The person need not be charged or convicted, and can have been already acquitted of the offence.

Under the pecuniary penalty order provisions, the DPP (and sometimes the police) can apply to the court for an order requiring the person to pay a sum of money equivalent to the value of the benefit the person gained from the offence. This provision can operate in parallel to a forfeiture order.

Under the Confiscation Act, the onus of proof is reversed (the defendant must prove that their property was lawfully obtained and not tainted), and the standard is lower than in criminal proceedings (it is the balance of probabilities). When determining the quantum of property, the court can include the all property the person had effective control over on the day the application was made. There is a special clawback provision which means that any property the person gave away as a gift in the previous six years (for criminal charge based) or going back an unlimited time period (for civil or automatic) can be included. This clawback provision goes far beyond the standards found in equivalent legislation in other parts of the country.

Another unusual feature is that while a restraining order is in place, the reasonable living expenses of the person and their family, and the reasonable business expenses can be paid for from the property if there are no funds available from unrestrained property or income. But not legal expenses.

Cases

In deciding whether to order the forfeiture of property (for criminal charge based), the court can consider any hardship that may reasonably be likely to be caused to any person. However, the courts have interpreted this to mean “something more than ordinary hardship” (DPP v Tran [2004] VSC 218). In another case, the court considered that, in opposing forfeiture on the grounds of hardship, it is necessary to show hardship other than what might be expected to arise from the ordinary operation of the Confiscation Act, the potential effect on the offender and innocent third parties, and whether the forfeiture would be disproportionate to the nature and gravity of the offence (DPP v Nikolaou [2008] VSC 111). The practical operation of the Confiscation Act has been that criminal charge based forfeiture provision of real property is generally not pursued, rather the automatic provision is utilised.

In the case of DPP v Khodi & Ali [2010] VSC 503, the court considered the hardship that the wife of a man who allowed the manufacture of drugs to occur on a rural property would suffer if it was forfeited. Mr Ali was acquitted, but the other co-accused persons were convicted. The court considered the rights not to have family or home arbitrarily interfered with and the entitlement of families to be protected by society and the State, and the right of a child to such protection as is necessary in his or her best interests by reason of being a child.

Justice Hargrave determined that

“in exercising the court’s discretion, the fact that it is an all or nothing discretion is an important matter to be taken into account”.

His Honour observed that

“there will be cases where the court takes the view that total forfeiture would be unduly harsh in all the circumstances, but the conduct of the owner of the relevant interest is such that the ends of the civil forfeiture regime would be defeated if the whole of the property was excluded from the operation of a civil forfeiture order. In such cases, the further discretion arising under section 45(1) of the [Confiscation] Act, which permits the court to order payment of a specified amount out of the forfeited property in order to avoid hardship to any person, is enlivened”.

The court found that the Confiscation Act on its own was incapable of breaching or limiting any human rights and ordered the property to be forfeited. The court did however find that Mrs Ali and the family would suffer real hardship and ordered that Mrs Ali be paid $125,000 from the proceeds of sale to ameliorate their hardship.

– Victorian section by Rhys Michie

*****

ENDS…but please let CLA know about any other examples of excessive use/abuse of draconian confiscation and seizure laws. Email: secretary@cla.asn.au