The Politics of Proceeds of Crime Legislation
38 Pages Posted: 15 Sep 2015
Date Written: 2015
It is estimated that crime costs Australia nearly $36 billion a year. Drug-related crime represents a significant proportion of this cost and is of increasing global concern. Perhaps of greater concern is the growing threat of terrorism across the globe. Like many countries around the world, in an effort to quell these threats Australia has introduced a raft of proceeds of crime confiscation statutes primarily aimed at stripping those involved in criminal activity of their ill-gotten gains and of the property used in carrying out that activity. Proceeds of crime statutes operate in all Australian jurisdictions and allow for the confiscation of property in specified circumstances. Legislation confiscating the proceeds of crime not only stops criminals profiting from their nefarious activities but also results in the community obtaining at least some financial benefit from the scourge of crime. This, together with the simplicity and perceived effectiveness of this criminal justice tool as a means of fighting crime, makes the proliferation of confiscation legislation inevitable. In the current political climate, there is a strong political appetite for robust confiscation legislation. However, any legislation depriving a person of his or her privately owned property without compensation is to be introduced and implemented with great caution: the perceived justifications for and desired outcomes of the legislation are to be carefully weighed against the violation of civil rights that the legislation may inflict. This article argues that political vote-winning ‘tough on crime’ messaging should not be allowed to compromise robust legislative debate on balancing the protection of individual rights and interests with effective criminal confiscation regimes. The authors propose using the rule of law as a benchmarking framework to guide and inform that debate thereby resulting in defensible legislative decision-making.
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