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The Pragmatic Context of Forfeiture Law and Its Application

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The Pragmatic Context of Forfeiture Law and Its Application University of Wollongong Research Online University of Wollongong Thesis Collection 2017+ University of Wollongong Thesis Collections 2017 Accounting as a Medium of Juridification: The Pragmatic Context of Forfeiture Law and Its Application Ian Kenneth Fargher Follow this and additional works at: https://ro.uow.edu.au/theses1 University of Wollongong Copyright Warning You may print or download ONE copy of this document for the purpose of your own research or study. The University does not authorise you to copy, communicate or otherwise make available electronically to any other person any copyright material contained on this site. You are reminded of the following: This work is copyright. Apart from any use permitted under the Copyright Act 1968, no part of this work may be reproduced by any process, nor may any other exclusive right be exercised, without the permission of the author. Copyright owners are entitled to take legal action against persons who infringe their copyright. A reproduction of material that is protected by copyright may be a copyright infringement. A court may impose penalties and award damages in relation to offences and infringements relating to copyright material. Higher penalties may apply, and higher damages may be awarded, for offences and infringements involving the conversion of material into digital or electronic form. Unless otherwise indicated, the views expressed in this thesis are those of the author and do not necessarily represent the views of the University of Wollongong. Recommended Citation Fargher, Ian Kenneth, Accounting as a Medium of Juridification: The Pragmatic Context of Forfeiture Law and Its Application, Doctor of Philosophy thesis, School of Accounting, Economics and Finance, University of Wollongong, 2017. https://ro.uow.edu.au/theses1/206 Research Online is the open access institutional repository for the University of Wollongong. For further information contact the UOW Library: [email protected] Accounting as a Medium of Juridification: The Pragmatic Context of Forfeiture Law and Its Application Ian Kenneth Fargher This thesis is presented as part of the requirements for the conferral of the degree: Doctor of Philosophy Supervisors: Dr Ciorstan Smark Dr Parulian Silaen Professor Ed Arrington The University of Wollongong School of Accounting, Economics and Finance November 2017 i This work Qc copyright by Ian Kenneth Fargher, 2017. All Rights Reserved. No part of this work may be reproduced, stored in a retrieval system, transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the author or the University of Wollongong. This research has been conducted with the support of an Australian Government Research Training Program Scholarship. ii Turnitin overall report submitted 31/10/2017 Paper ID 871650286 iv Abstract Authorities throughout the world have increased the presence of forfeiture legislation aimed at targeting the growing wealth of organised criminals. The concept of removing the use and enjoyment of tainted assets, the proceeds of crime, has become the governing mantra espoused as the driving force behind the juridification of confiscation statutes. The focus on criminal proceeds inevitably invites accounting, as a profession, to join the legal fraternity as a medium in the prosecution of forfeiture matters. Accounting is invited to contribute to the forfeiture adjudication in regard to its economic expertise, that advises with regard to monetary considerations, such as, the valuation of assets, the movement of funds and in establishing unexplained wealth. This specialist area is referred to as forensic accounting, with its validating influence being felt as judicial advice within the courtroom and in the ratification of judicial remedies to the community. The research uses Habermasian (1929 to present) rationality to examine the enhanced active communication arising from the facticity of accounting within the context of the legal system. Resisting the totality of reliance upon the philosophical thought of one proponent, this dissertation applies the research of critical accounting researchers to the role accounting plays in the provision of validating expert evidence. Professional accounting attributes, simultaneously position accounting technologies inside and outside the courtroom. The treatise recognises the appropriate use of professionally endorsed patterned accounting principles that provide reliable substantiation and assist the communication of judicial decision-making. Pragmatically, the research questions then consider the endorsement of appropriately deployed patterned accounting principles for use in forfeiture matters. Through the broad application of uniform evidence rules, it is argued that the presentation of expert forensic v accounting methodologies in legislative genres that engage similar issues to those of forfeiture, present valid utility when applied to the determination of unexplained wealth. Further the treatise reviews 48 cases reported under the unexplained wealth provisions of forfeiture legislation between 2011 and 2016. The thesis concludes with the recognition of the role accounting plays in the juridification of forfeiture law, based on the proposition that the deployment of forensic accounting technologies, using professionally supported patterned principles, is a valid strategic approach to the denial of the enjoyment of the proceeds of crime. However, contrary to the rhetoric attendant with the introduction of juridified statutory clauses, the research fails to show the broad implementation of forensic accounting in support of unexplained wealth strategies. As a policy recommendation, this thesis suggests that a number of policy aims would be better realised if forensic accounting technology were to be more fully recognised and deployed in the service of the aims of the forfeiture statutes. vi Acknowledgements I would like to acknowledge the support of my colleague in the post graduate Master of Forensic Accounting course, Associate Profession Kathie Cooper for her encouragement and discussions pertaining to the forensic accounting processes discussed in this dissertation, and indeed the motivation to commence and pursue this higher degree. Further I wish to thank Professor Ed Arrington for his introduction to Habermas and legal philosophy and for his learned discussion and challenges that led to a greater depth of knowledge and application. My appreciation should also go to my brother, Professor Neil Fargher of Australian National University and my father Dr Ken Fargher (retired) for their encouragement and advice reflecting both their own experienced and wisdom derived from lengthy and lauded academic careers. My supervisors Dr Ciorstan Smark and Dr Parulian Silaen for displaying both patience and confidence in my ability to complete this academic challenge. Specifically Ciorstan’s persistence in reading and re-reading changed chapter versions. Also thanks to Danielle O’Neill for polishing the niggly word processing nuances and reappearing lines to make the document look presentable in this digital age. I would also like to acknowledge the professional editing assistance of Dr Laura E. Goodin. Finally I wish to acknowledge my family who have contended with a cantankerous father and husband as I wrestled with the arguments and responses required to negotiate the hills and valleys of this journey. vii Contents Declaration ................................................................................................................................ iii Abstract ...................................................................................................................................... v Acknowledgements .................................................................................................................. vii Contents .................................................................................................................................. viii Chapter 1: Introduction .............................................................................................................. 1 Chapter 2: Definitions and Concepts ....................................................................................... 17 Chapter 3: Literature Review ................................................................................................... 35 Chapter 4: The Research Argument ......................................................................................... 80 Chapter 5: Formal Acceptance of Expert Evidence ............................................................... 122 Chapter 6: Forfeiture Legislation ........................................................................................... 162 Chapter 7: The Effectiveness of Forfeiture Legislation ......................................................... 198 Chapter 8: Accounting Evidence ........................................................................................... 236 Chapter 9: Forensic Accounting Evidence for Forfeiture Matters ......................................... 278 Chapter 10: Conclusion and further Research ....................................................................... 319 Appendices ............................................................................................................................. 336 Legislation.............................................................................................................................
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