Criminal Law

By Ben Aulich


Confiscation laws require review

This year I have seen the Australian Federal Police (“AFP”) and the ACT Office of the Director of Public Prosecutions (“Director’s Office”) exercise their incredibly draconian and overreaching power to confiscate property that is connected with a crime under the Confiscation of Criminal Assets Act 2003 (“the Act”). Sometimes the connection between the property and the crime is tenuous at best – but there only has to be the smallest of links between the property and the crime for the AFP and the Director’s office to use their power.

In one case the AFP and the Director’s Office was able to confiscate a car that was used to drive to a person’s house to commit a crime. That was the extent of the use of the car in the commission of the crime. It was not even used as a “get-away vehicle”. Had he walked to the house, would the they have confiscated the offender’s shoes?

In another case a small quantity of a drug was found in a bag in a car. There was no evidence my client used the car to administer or sell drugs. But that was enough for the AFP and the Director’s Office to use their powers under the Act to confiscate the car. There are many more of these examples I have seen this year alone.

Both of the examples above show the AFP and the Director’s Office are willing to use the Act anyway they wish, rather than only to cure the evil it is designed to cure.

I am not saying people should be able to reap financial gains from crime. However, I am saying the Act needs revisiting to get the balance right. If you leave un-fettered and wide powers to organisations such as the AFP or the Director’s Office to use them reasonably – it will lead to unjust and ridiculous results like the two examples I have given above.

Having said the above – I do wonder how many times the AFP and the Director’s Office have ever made application to confiscate a Catholic Church?