From: phil_herring@itsus-gw.uow.edu.au (Rev Dr Phil Herring)
Subject: Re: Australian Government and RICO
Organization: University of Wollongong
Date: Mon, 6 Apr 1992 07:08:58 GMT

In article <1992Apr5.184404.7135@ncsu.edu> hes@unity.ncsu.edu (Henry E. 
Schaffer) writes:
>   We've had lots of discussion on the responsiveness and general
> wonderful aspects of Australian government, versus the situation in
> the U.S.A. in which many of us feel something along the lines of
> "eternal vigilance is the price of liberty".

...I'll come back to this last phrase.

> One of the matters of
> concern in this context has been the RICO laws in which government
> powers seem to be getting somewhat out of control, and so a post in 
> misc.legal (with Subject: Re: Needed: Constitutional Amendment 
> Abolishing Civil Forfeiture!) was particularly interesting.
> According to this post the state of NSW has civil forfeiture laws
> resembling the U.S. RICO laws and has recently applied them for the
> first time.

I take the blame for that latter posting.

However, the NSW Act that permits the confiscation of allegedly
ill-gotten gains is less outrageous than RICO. As I understand it, the
government sues you to get the property, and you have to prove that you
obtained said goods legally if you want keep them. This is a basic denial 
of the assumption of innocence, and since civil cases like this depend on 
the balance of evidence - as opposed to guilt beyond reasonable doubt - they 
tend to be easier to prove than criminal cases.

Despite it being less extreme than RICO, it's probably the most alarming
law on the books in this country (unless you count the clause in our
constitution empowering the government to disenfranchise people on
the basis of race or national origins).

>  Perhaps some of the Australian readers would like to
> comment on this topic, and on whether there is any concern about
> restraint of government powers.

Concern about restraint of government powers? It exists, though not as part
of the general flux of political "debate". I quote that word here to indicate
that I think such debate as exists resembles the inane name-calling of
schoolchildren. (Citizens of the USA should not take comfort from this,
though, because we seem to have the same standard of political debate here
as you do over there. Different tone, but the same intellectual level.)

We Australians aren't protected too well from government repression by our
constitution; but that's about as far as the concerns go. In general,
civil rights violations are very rare in this country. To take the example
mentioned above, the laws used to confiscate alleged drug-dealers' property
have been used _once_ since they were enacted back in about 1989 or 1990.
I would hazard a guess that this is cultural, more than anything.
(After all, government is an offshoot of culture, not a political entity that
exists in a vacuum.) I think that a vague sense of fair play works to our
advantage in these matters. As a result, our government, whilst not bound
very tightly to any specific code of conduct, nevertheless leaves people
pretty much alone.

Compare this with the USA, which has a constitution that places quite 
specific limits on what a government can do. The government there has 
chosen to ignore some parts of that constitution when it suits it. I'm not
trying to be critical of the USA here; I'm merely pointing this out. (In 
fact, I'm sure that readers of t.p.g can appreciate that the government 
would like to ignore the second amendment if it could get away with doing so.)
It seems to me that the spirit of the times has more to do with this than 
legal documents. Currently, our government leaves us alone, though it isn't
legally bound to do so, and may indeed change its collective mind in the
not-too-distant-future; whilst the US government, though legally required
to do the right thing, is manifestly prepared to ignore its obligations. 
If we are to conclude anything from this, it's that you aren't being 
vigilant enough, and that we continue to be luckier than we deserve.



-- Phil.
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          Rev Dr Phil Herring,University of Wollongong, Australia 
phil_herring@itsus-gw.uow.edu.au         Copyright (c) 1992 Phil Herring
"My manner of thinking, so you say, cannot be approved. Do you suppose I
care? A poor fool indeed is he who adopts a manner of thinking for others!
My manner of thinking stems straight from my considered  reflections; it
holds with my existence, with the way I am made. It is not in my power to
alter it; and were it, I'd not do so." Donatien Alphonse Francois de Sade
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