From: ph@cs.uow.edu.au (Phillip Herring)
Subject: Civil forfeiture in Australia
Organization: Dept of Computer Science, Wollongong University, Australia
Date: Tue, 29 Sep 1992 23:56:13 GMT


[What follows is an excerpt from last week's 'Sunday Telegraph'. It
appeared in article regarding the Australian Federal Police. The 
article's preface included these words: "[...] several high-ranking
Federal Police officers last week spoke to the Sunday Telegraph
about their enormous success rate in solving major crimes." 
Later in the article it quotes the Assistant Commissioner as saying 
that only five to ten per cent of the drugs being smuggled into 
Australia are being intercepted. To paraphrase Arthur Dent: this is
some strange, new meaning of the phrase "enormous success rate" that
I hadn't previously been aware of.]

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"[...] If police are intercepting only a small proportion of the drugs 
being smuggled into Australia, then they are at least getting some 
satisfaction from the results of the criminal-assets seizure 
legislation.

"The Australian Federal Police have revealed that in the past 
financial year, more than $35 million was seized in assets from
convicted drug traffickers in NSW alone.

"Among luxury items 'restrained' from the wealth accumulated by drug-
pushers were original paintings by Salavdor Dali and Pro Hart; lavish
holiday homes at Noosa and on the Gold Coast; ocean-going cruisers;
Porsches; Ferraris; and more than $5.5 million in cash.

"During the previous year, the value of assets seized in NSW was $28.3
million.

"'The whole idea of the legislation is to deprive criminals of their
ill-gotten gains, and in that respect we are succeeding,' [Assistant
Commissioner] Baer says.

"Proceeds from the sale of these seized items are put into the Criminal
Assets Trust Fund - half of which goes to the law-enforcement agencies
for special schemes such as witness protection, and the other half to
drug education and rehabilitation projects.

"The authorities can 'restrain' all assets they consider to be gained
illegally through trafficking in drugs [...it continues into a 
discussion about fraud cases]."
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That last half-sentence is the *only* description of the assets seizure
laws in the whole article. In NSW, they work like this: the state
government may sue you for your property. This happens in a civil
court, and you don't have to be charged with any crimes for them to
do this. As a result, you have to prove that you obtained said
property legally - thereby abandoning the assumption of innocence -
and if you can't (or won't), then the government takes it. Since the
matter is dealt with under civil law, the government's case against you
need only succeed on the balance of evidence, unlike a criminal
case, which has to convince a jury "beyond reasonable doubt". Their
case is therefore much easier to prove, and this can be used to
punish alleged drug traffickers where a criminal case could never
succeed.

I gather that so far, all such cases in NSW have involved drug
traffickers who have already been convicted of drug crimes. As
such, it constitutes a second tier of punishment above and beyond
the normal criminal justice program. However, at least one NSW judge
has gone on public record as saying that the seizure laws should be
used to deprive "drug pushers" of the means to defend themselves in
court. Evidently, he no-one is innocent before that particular judge 
when it comes to drug charges.

-- 

-- Phil.
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        These opinions (c) 1992 Phil Herring (ph@cs.uow.edu.au)
Xref: sparky talk.politics.drugs:6613 alt.individualism:5664