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Overview Report: Selected Writings of Dr. Natalie Skead

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Overview Report: Selected Writings of Dr. Natalie Skead Overview Report: Selected Writings of Dr. Natalie Skead I. Scope of Overview Report 1. This overview report attaches selected writings by Dr. Natalie Skead. II. Journal Articles a. Appendix A: Natalie Skead, “Drug-trafficker property confiscation schemes in Western Australia and the Northern Territory: A study in legislation going too far” (2013) 37 Criminal Law Journal 296. b. Appendix B: Natalie Skead and Sarah Murray, “The Politics of Proceeds of Crime Legislation” (2015) 38:2 UNSW Law Journal 455. c. Appendix C: Natalie Skead, “Crime-Used Property Confiscation in Western Australia and the Northern Territory: Laws Befitting Draco’s Axones?” (2016) 41:1 The University of Western Australia Law Review 67. d. Appendix D: Natalie Skead, Tamara Tulich, Sarah Murray and Hilde Tubex, “Reforming Proceeds of Crime Legislation: Political Reality or Pipedream?” (2019) 44:3 Alternative Law Journal 176. III. Submission to the Review of the Criminal Property Confiscation Act 2000 (WA) e. Appendix E: Sarah Murray, Natalie Skead, Hilde Tubex and Tamara Tulich, Submission: Review of the Criminal Property Confiscation Act 2000 (WA). 1 Appendix A Natalie Skead, “Drug-trafficker property confiscation schemes in Western Australia and the Northern Territory: A study in legislation going too far” (2013) 37 Criminal Law Journal 296. Appendix A Drug-trafficker property confiscation schemes in Western Australia and the Northern Territory: A study in legislation going too far Dr Natalie Skead* Combating drug-related crime is a key focus of proceeds of crime legislation in Australia. Despite this clear focus only three Australian jurisdictions have introduced confiscation provisions levelled specifically at those involved in drug-related crimes: New South Wales, Western Australia, and the Northern Territory. Queensland and South Australia currently have Bills before Parliament aimed at introducing specific drug-related confiscation provisions into their confiscation of proceeds of crime regimes. In New South Wales, drug-trafficker property confiscations operate in virtually the same way as other criminal property confiscations. In Western Australia and the Northern Territory, however, the drug-trafficker confiscation provisions are distinct from the other criminal property confiscation provisions and are particularly harsh. This article examines their operation; in particular, the potential impact of the provisions on the property rights of defendants and innocent third parties is analysed and critiqued. It is argued that the drug-trafficker confiscation schemes in both jurisdictions impact unjustifiably and inequitably on property rights and, in doing so, go far beyond achieving the stated objectives of the legislation. INTRODUCTION Proceeds of crime legislation provides for the confiscation of property in specified circumstances. These circumstances include where a person’s wealth is unexplained, where property is used in the commission of a specified offence, where property is derived from the commission of a specified offence, and where property is or was owned by a declared drug-trafficker. There were, no doubt, compelling policy reasons for the introduction of this legislation across Australia from the late 1980s. In the Second Reading Speech on the first Commonwealth Proceeds of Crime Bill 1987, the then Deputy Prime Minister and federal Attorney-General, Mr Lionel Bowen, stated that: The Proceeds of Crime Bill provides some of the most effective weaponry against major crime ever introduced into this Parliament. Its purpose is to strike at the heart of major organised crime by depriving persons involved of the profits and instruments of their crimes. By so doing, it will suppress criminal activity by attacking the primary motive – profit – and prevent the re-investment of that profit in further criminal activity.1 Deterring serious crime by denying perpetrators the benefits of their criminal activity remains an important driver in the continued development, refinement and implementation of this legislation across Australia. There is a significant body of research on proceeds of crime legislation. In the main, however, existing scholarship focuses on the sociological and criminological aspects of the legislation, including whether such legislation operates as a successful deterrent against the commission of targeted crime, and the impact of the legislation on law enforcement practices. There is little scholarship on the impact of the legislation on the property rights of defendants and, more importantly, innocent third parties. * Associate Professor and Associate Dean, Faculty of Law, University of Western Australia. 1 Commonwealth House of Representatives, Proceeds of Crime Bill 1987 (Cth), Second Reading Speech, Lionel Bowen (30 April 1987) p 2314. 296 (2013) 37 Crim LJ 296 Appendix A Drug-trafficker property confiscation schemes in Western Australia and the Northern Territory The aim of this article is to examine the potentially harsh consequences (in particular the proprietary consequences) of proceeds of crime legislation in Australia. Of the various types of confiscations currently in operation, drug-trafficker confiscations are particularly severe, and they will therefore be the focus of this article. First, the article considers the legislation in Australia generally before examining in detail the operation of drug-trafficker confiscations in Western Australia and the Northern Territory – in the form of a case study. The article next looks at the impact of the schemes on the property rights of defendants and third parties. It then examines the constitutional validity of the schemes, and discusses Crown practice in relation to drug-trafficker confiscations in Western Australia. DRUG-TRAFFICKER CONFISCATION IN AUSTRALIA From the initial introduction of proceeds of crime legislation in Australia, drug-related crime and the perpetrators of such crime have been the target of the legislators.2 Indeed, the first Australian foray into the legislative realm of proceeds of crime confiscation, s 229A of the Customs Act 1901 (Cth),3 provided for the confiscation of property derived from specified dealings in narcotics unlawfully imported into Australia. An early stimulus for the wide-scale adoption of criminal confiscation legislation, the 1988 United Nations Convention against Illicit Traffıc of Narcotic Drugs and Psychotropic Substances, states relevantly: THE PARTIES TO THIS CONVENTION, DEEPLY CONCERNED by the magnitude of and rising trend in the illicit production of, demand for and traffic in narcotic drugs and psychotropic substances, which pose a serious threat to the health and welfare of human beings… DEEPLY CONCERNED ALSO … by the fact that children are used in many parts of the world as an illicit drug consumers market and for purposes of illicit production, distribution and trade in narcotic drugs and psychotropic substances … AWARE that illicit traffic generates large financial profits and wealth enabling transnational criminal organizations to penetrate, contaminate and corrupt the structures of government, legitimate commercial and financial business, and society at all its levels, DETERMINED to deprive persons engaged in illicit traffic of the proceeds of their criminal activities and thereby eliminate their main incentive for so doing, … HEREBY AGREE as follows: … Article 5 Confiscation 1. Each Party shall adopt such measures as may be necessary to enable confiscation of: (a) Proceeds derived from [the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, … importation or exportation of any narcotic drug…], or property the value of which corresponds to that of such proceeds; (b) Narcotic drugs … used in or intended for use in any manner in [the production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, … of any narcotic drug].4 While the proceeds of crime legislation in all Australian jurisdictions is directed at combating serious and organised crime, including drug-related crime generally,5 the legislatures in Western Australia, the Northern Territory and New South Wales considered the illicit drug trade to be a 2 Thornton J, “The Objectives and Expectations of Confiscation and Forfeiture Legislation in Australia: An Overview” in National Crime Authority, National Proceeds of Crime Conference (Sydney, 18-20 June 1993). 3 Section 229A was inserted into the Customs Act 1901 (Cth) pursuant to s 8 of the Customs Amendment Act 1977 (Cth). 4 United Nations Convention against Illicit Traffıc of Narcotic Drugs and Psychotropic Substances (United Nations Treaty Series, 1988) p 95. 5 Australian Law Reform Commission (ALRC), Confiscation that Counts: A Review of the Proceeds of Crime Act 1987 (Cth), Report No 87 (1999); Sherman T, Report on the Independent Review of the Operation of the Proceeds of Crime Act 2002 (Cth) (July 2006); Moffıtt Royal Commission of Inquiry in Respect of Certain Matters Relating to Allegations of Organised Crime in Clubs Report (15 August 1974); Williams Inquiry Report (1980); Costigan Royal Commission on the Activities of the Federated (2013) 37 Crim LJ 296 297 Appendix A Skead sufficiently severe threat to the fabric of society that they introduced specific drug-trafficker confiscation provisions into their principal proceeds of crime legislative regimes.6 Queensland and the South Australia are now following suit.7 In New South Wales, drug-trafficker confiscations operate in virtually the same way as other criminal benefits confiscations. In Western Australia and the
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