The Compatibility of Unexplained Wealth Provisions and ‘Civil’ Forfeiture Regimes With Kable

Abstract

This paper considers the growing use of forfeiture regimes in Australian law to deal with suspected criminal offending. Increasingly, these regimes apply in the absence of a conviction against the person whose property is to be confiscated; indeed the person need not have been charged with any crime, and an actual acquittal on a charge is no bar to the proceedings being brought. These regimes include unexplained wealth provisions, which often contain a reverse onus of proof, requiring the person whose property is liable to be confiscated to prove the lawfulness by which they acquired property, rather than for the prosecutor to prove the truth of an allegation of criminality. These regimes raise the important question of where the true boundary is between proceedings that are 'criminal' in nature and proceedings that are 'civil' in nature, or whether the existing boundary lines no longer serve us well. In addition, I argue that by asking the court to make a confiscation order in the absence of any specific allegation of criminality or proof that a criminal offence has been committed, these regimes offend the Kable principle, by departing significantly from traditional judicial process, and imposing what is in essence 'punishment', a criminal response, to a proceeding that is dressed up as being 'civil' in nature.