Forfeiture Provisions and the Criminal/Civil Divide

Abstract

The Australian Government has recently implemented civil forfeiture provisions for property suspected to have been acquired unlawfully. The Australian Federal Police may seek a preliminary unexplained wealth order. The Court may make such an order if there is evidence the wealth may have been acquired from unlawful means. Once the order is made, a full hearing takes place. There it is presumed that such property was unlawfully gained, unless the person who owns the property can show otherwise. Such proceedings can take place without the property owner being charged. The article considers the historical basis of such orders, and their use in the United States and United Kingdom. It is argued that such proceedings are in fact criminal in nature, despite how they are labelled. The article engages with the discusssion in the larger context of the divide between criminal and civil, and whether some “middle ground” should be acknowledged. If forfeiture provisions are in substance criminal, perhaps due process obligations apply, including the presumption of innocence. This argument is more difficult in Australia, given the lack of an express bill of rights. However, it can be argued from previous cases that there is an implicit right to a fair trial, including a presumption of innocence.