Forfeiture provisions and the criminal/civil divide

Abstract

Provisions have recently been introduced into Commonwealth criminal legislation to provide for the forfeiture of so-called 'unexplained wealth'. If some evidence exists that a person has wealth other than that explicable by lawful activity, the court can make a preliminary order against the person. At the final hearing, there is a presumption that the wealth was acquired other than through lawful means, and the burden is on the person to prove otherwise. Such a reversal of the onus of proof is unusual. I argue that in substance such proceedings are criminal in nature, given the seriousness of the accusation. As a result, criminal due process provisions should apply, including a rquirement that the accuser make good their allegation, at the criminal standard.