Author: Rozenes, M. Date: 18/10/1994 Venue: The Confiscation and Forfeiture of Criminal Assets: opening address Assets: a seminar on the Proceeds of Crime Act 1987 and related forfeiture legislation, Hobart
Thank you for the opportunity to speak at this seminar. I congratulate those officers from the AFP, the Insolvency and Trustee Service Australia, and the Australian Government Solicitor's Office who have been responsible for its organisation. The importance and usefulness of the seminar is attested to by the number of participants including State agency representatives. The passage of the Tasmanian Crime (Confiscation of Profits) Act 1993 has made asset confiscation legislation and practice a subject of equal interest to State agencies as it has been for some time to their federal counterparts. I would like to take this opportunity to make a number of observations concerning the criminal assets initiative. 1. My first observation is to stress the importance of criminal assets work. It is vital that, in conjunction with prosecutions, there be forceful and persistent action to deprive criminals of the benefits of their criminal behaviour. To many offenders the risk of prosecution and imprisonment is part of the cost they are prepared to pay for eventually enjoying the fruits of their often lucrative criminal activities. Much has been said about the deterrent effect of removing the proceeds of crime. By removing the profit we reduce the incentive to commit crimes aimed at the accumulation of wealth. There is another more basic rationale for this work. - It keeps faith with the vast majority of people who do not commit crimes and who do meet their obligations to the community in terms of paying taxes and acting within the law generally. It helps to dispel the notion that after a period of incarceration a person will be free to enjoy the proceeds of his or her criminal activity. In other words, that crime does pay. I don't wish to labour this point about the importance of the criminal assets initiative as I hope that I am preaching to the converted. I will now make a very practical point: When this initiative first started, criminal assets work was considered as just an adjunct to the prosecution process. It was seen as a good idea, but one that was secondary to the prosecution function and would be tolerated only as long as it did not interfere with the prosecution. That attitude is changing as more investigators and prosecutors come into contact with the process and see its effectiveness. Of course some actions are dependent on a successful prosecution but that does not mean that recovery is in any way secondary or less important than prosecution. In fact it can be argued that in the overall scheme of deterrence, and disabling further criminal activity, the criminal assets function has an equal, and some may say an even greater role to play. The task is far from complete at the end of the prosecution phase. This is a message that I think we have to continue to strive to get across to all investigators and prosecutors. There has been growing recognition worldwide of the importance of this type of work. The USA has led the way and countries such as the United Kingdom and Canada and many other common law countries have enacted confiscation legislation in more recent times. The international acceptance of asset confiscation legislation is illustrated by the large number of countries, over 120 at last count, that have ratified or approved the 1988 UN Convention Against Illicit Traffic In Narcotic Drugs And Psychotropic Substances, better known as the Vienna Convention. However, the enactment of practical asset confiscation legislation is only part of the story of any successful asset confiscation system. Whatever the form or content of a confiscation statute, it will have little or no practical effect if appropriate measures are not taken to enforce it. Confiscation legislation, which targets assets, is quite different from other criminal sanctions which target people. It cannot be treated as "just another law". The approach which has been adopted within federal law enforcement agencies has been to allocate resources and to set up units within each agency with the specific task of enforcing confiscation legislation. This approach has worked. It shortened the learning curve, built up expertise and ensured that the initiative has been pursued with vigour from day one. (Similar approaches have been adopted by a number of State agencies). Obviously Tasmania's law enforcement problems as well as the resources available to tackle them means that this model or approach cannot be followed here without modification. However there is no reason why Criminal Assets Investigations Units or Criminal Assets Branches cannot become Criminal Assets Investigation Officers or Criminal Assets Officers. The important thing is to plan and organise at both operational and management levels. The longer term well-being of the initiative depends on the continued support of senior management from the agencies involved and a continued broadening of responsibility to all investigators and prosecutors. Confiscation of assets should be seen as an essential part of the skills of all investigators and prosecutors necessary to deal with today's law enforcement problems. Management support can be manifested by the provision of adequate resources and appropriate career structures and due recognition of the difficult work performed in this area. 2. The second observation that I wish to make concerns the breadth of available remedies. The Commonwealth has a very effective armoury of weapons that can be used to recover ill-gotten gains in a variety of circumstances. The more important of these weapons can briefly be listed as follows:
- The Proceeds of Crime Act provides a comprehensive scheme for confiscating assets from those convicted of Commonwealth indictable offences.
- The Customs Act contains pecuniary penalty provisions and forfeiture provisions which can be very effective in combating drug-related activity.
- The DPP has a civil remedies function which gives it a role in normal civil recovery action by Government agencies in matters connected with potential or actual prosecutions. This has proved most effective in use of taxation legislation to assess criminally derived income.
Some of these remedies will be discussed in more detail later on in this seminar. There are many different ways that a particular matter can be approached in recovering assets. There is a need to think innovatively and to consider all possibilities. The approach adopted by the DPP is to consider the options for recovery in each case and pursue the most effective and efficient means of recovery. Because the money recovered can end up in different places depending on the recovery method used, the ability to use the most effective means of recovery depends on close liaison and co-operation of all agencies involved. There is no room here for inter-office rivalries. The end product of what we are about is to recover proceeds from criminals and have that money returned for the use of the general public in one way or another. If you look at the process as a continuum then each of the agencies represented here has a crucial role to play. In cases of fraud, agencies have an important role in discovering the conduct and assisting with the investigation and recovery. Investigative agencies such as the Australian Federal Police, National Crime Authority and State police forces uncover criminal activity and carry out the investigation. The DPP, state or federal, is involved along with those agencies in dealing with the necessary court processes. The Official Trustee looks after secured assets and eventually realises them to satisfy pecuniary penalty orders or realise the proceeds of forfeited property. Any credit for the success of the criminal assets initiative belongs to all agencies and it is important that all agencies get recognition for this work. Co-operation with State police forces and other law enforcement bodies is a further dimension to the desirability for close co-operation in recovering the proceeds of criminal activity. It is important that in combined Commonwealth/State operations the most efficient means of recovering criminal proceeds be used, regardless of whether it involves the use of State or Commonwealth legislation. One way to ensure that this happens is by the equitable sharing of any proceeds recovered amongst the agencies involved. - Equitable sharing arrangements between the Commonwealth and State Attorneys-General seem to be working reasonably well and prevent what might otherwise be an undignified race by competing agencies to grab available assets without regard to the best method of recovery. Seminars such as this can only enhance effective co-operation. Work in this area is seldom easy. The legislation is relatively new, innovative and complex. The reaction of some judges has ranged from misunderstanding to outright hostility. There has been considerable academic criticism of the Proceeds of Crime Act. Dire predictions have been made about the trampling of civil liberties and the extremely unfair results likely to be caused by the draconian nature of the legislation. The Act is strong and is designed to be effective at removing criminal proceeds. In the light of these criticisms, one pleasing aspect has been the way in which the Proceeds of Crime Act has been enforced. The Act has been administered forcefully but fairly with interference of people's rights kept to a minimum. Many of the dire predictions which have been made, have simply not occurred. We will endeavour to ensure that the legislation is continued to be enforced vigorously but fairly. Obviously monetary measurements will continue to be an important yardstick by which our efforts are judged and the Confiscated Assets Trust Fund is a significant innovation for the collection of some recoveries and ensuring that the money is put to appropriate use. The key is to be able to consider all options for removing proceeds from offenders and use the most effective method regardless of where the money recovered ends up. Once again I congratulate the Seminar organisers and thank you for the opportunity to speak.