Edwards, David --- "Proceeds of Crime" [1998] ALRCRefJl 16; (1998) 72 Australian Law Reform Commission Reform Journal 70

• Reform Issue 72 Autumn 1998
• By David Edwards*

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Reform Issue 72 Autumn 1998

This article appeared on pages 70 – 71 of the original journal.

Proceeds of Crime

By David Edwards*

Should convicted criminals be able to benefit from literary proceeds if they ‘sell the story’ of their crime? Should a victim of a crime receive compensation or reparation from the proceeds of the crime committed against them? What controls should exist on the use of suspected proceeds of crime to fund a legal defence? How should the rights of third parties, such as joint owners of forfeited property and creditors, be protected?

These are some of the key issues that the government has asked the Australian Law Reform Commission to consider in its new reference on proceeds of crime.

The idea of criminals benefiting from illegal activities is one that has the ability to provoke strong emotions - not only from victims but society generally. However, the issue is not merely one of righteous indignation. Confiscation of the profits of criminal activity is of key importance in Australia’s effort to counter serious crime.

Depriving people of the proceeds and benefits of offences means those funds will be unavailable for reinvestment in criminal activity. An effective conviction-based system for forfeiture of the proceeds of crime is essential to meet community concerns that the criminal justice system is appropriately equipped to deal with serious crime.

Australia also has an international obligation to maintain a regime enabling the forfeiture of the proceeds of crime. Recent international instruments on measures to combat drug trafficking and money laundering require parties to make provision for laws and procedures not only to confiscate proceeds, but also to assist other countries to do likewise.

Proceeds of crime include money a person makes as a result of any criminal activities, and are particularly relevant for crimes involving drugs, money laundering and fraud. In the case of the drug trade, proceeds of crime can also often involve airplanes, vehicles and vessels used in the importation and export of drugs.

The ALRC review - announced by federal Attorney-General Daryl Williams in December last year - will cover the Proceeds of Crime Act 1987, the Crimes (Superannuation Benefits) Act 1989 and Part VA of the Australian Federal Police Act 1979.

In addition, the Commission will examine existing provisions in Commonwealth law for non-conviction based forfeiture, as well as whether the civil forfeiture regime of Division 3 of Part XIII of the Customs Act 1901 should be integrated into the Proceeds of Crime Act.

The inquiry is a broad review, which will give people with concerns about the current system a chance to air them. Specifically, the ALRC will be consulting with the Australian Federal Police, the National Crime Authority, Commonwealth and State Attorneys-General and Directors of Public Prosecution, defence lawyers and customs authorities.

In conducting its review, the areas the Commission has been specifically asked to consider include:

• the need for appropriate recognition of third parties when there is forfeiture of jointly-owned property, or where creditors are involved;

• whether compensation or restitution should be made from the forfeiture of proceeds of a crime, to the victim of the same crime;

• the relationship between proceeds of a crime and their use for legal expenses;

• the need for modification and integration of Commonwealth forfeiture regimes;

• possible legislation to cover ‘literary proceeds’;

• police powers to obtain information from financial institutions for the purpose of locating the proceeds of crime; and

• existing provisions for the loss of Commonwealth superannuation entitlements and benefits following conviction for ‘corruption’.

The Commission will look at the various laws of Australian States and Territories, with respect to forfeiture of the proceeds of crime, as well as examining Commonwealth laws, relevant international conventions and overseas experience.

An information brochure has recently been prepared to assist stakeholders in understanding the nature of the major issues being addressed by the inquiry.

This will be followed in August by a comprehensive discussion paper, which will elaborate on those issues and provide a range of possible options for preliminary comment and discussion.

* David Edwards PSM is the Deputy President of the Australian Law Reform Commission and the Commissioner with responsibility for the proceeds of crime reference.