NCJ Number
137925
Journal
Australian and New Zealand Journal of Criminology Volume: 25 Issue: 1 Dated: (March 1992) Pages: 44-82
Date Published
1992
Length
39 pages
Annotation
Criminal confiscation legislation in Australia has been hailed as a major new weapon against crime, but this article argues that governments have expected too much from such legislation and that drastic laws have the potential to undermine some of the important foundations of the criminal justice system.
Abstract
The Crimes (Confiscation of Profits) Act of 1985 provides a mechanism for tracing, freezing, and confiscating crime proceeds. Legislation to confiscate crime proceeds has now been enacted in all Australian jurisdictions except for Tasmania and the Australian Capital Territory. The core of legislation is the confiscation order, which can be made following a conviction and before or after the imposition of sentence. A confiscation order is the generic description for two orders, a forfeiture order and a pecuniary penalty order. The legislative history of confiscation legislation clearly supports the view that traditional sanctions such as fines and imprisonment do not suppress organized crime and drug trafficking. The author notes that an accepted set of criteria do not exist for distinguishing between criminal and civil sanctions or between sanctions and nonsanctions. Therefore, the door is open to evade traditional safeguards afforded to accused persons. A balance is necessary between crime control and other values such as fairness, justice, accountability, and the presumption of innocence. The application of appropriate safeguards to criminal confiscation must not depend on historical accident or legal fiction. These safeguards must be deliberately incorporated to limit the mistaken, arbitrary, or unjust application of State power and to preserve the dignity of the individual and the right of that individual to his or her property. A history of forfeiture law is provided, along with a detailed discussion of the nature of confiscation proceedings. 49 references and 229 notes