The compatibility of unexplained wealth provisions and 'civil' forfeiture regimes with Kable

Abstract

This paper considers the growing use of civil forfeiture and unexplained wealth provisions at national and state level in Australia. Essentially, they provide for the forfeiture of property belonging to a person in the absence of a conviction of that person for a related offence. They are based rather on a suspicion that the person may have derived such property from an offence, though the allegation need never have been formally made in court, let alone a conviction obtained. I argue here that to ask a court to make a forfeiture order in such circumstances is to ask them to act in a non-judicial manner, since confiscation of property is seen to be punishment, and this should only be inflicted upon a person following a criminal trial. In essence, though they might be dressed up as civil proceedings, the author argues they are in substance criminal proceedings, such that the criminal standard of proof should apply. The court should not be asked to participate in such proceedings, and to do so is offensive to the Kable principle.