The 2020 George Floyd/BLM/Police Brutality Protests Discussion Thread

[Danoff]

Next you're going to tell me that Romeo and Juliet don't live happily ever after.

When I was in like 6th grade learning about the civil war (and this should tell you something about my parents), I vividly recall the look on my teacher's face when I asked her who won.

 

[Joey D]

When I was in like 6th grade learning about the civil war (and this should tell you something about my parents), I vividly recall the look on my teacher's face when I asked her who won.

Depends on where you live I suppose. I fully expect some backwoods teacher in Mississippi tells the class that the South won and will rise again.

 

[FPV MIC]

Edited to add.

I've got some bad news for you @FPV MIC . Australian police may not abuse it to the same degree the US Police do, but it works in almost the exact same way.

"The main criteria in determining whether an asset can be forfeited is whether the asset was used as an instrument of crime and whether the realised funds are the result of the proceeds of crime. If an entity is subject to a pecuniary penalty order or a similar type of order in the various States and Territories in Australia, legitimately acquired assets can be used by the authorities to satisfy the debt attached to the order.

It’s worth noting that proceeds of crime litigation in Australia is generally regarded as civil in nature, meaning that the relevant threshold standard is the lower test of the balance of probabilities rather than the higher criminal standard of beyond reasonable doubt.

Proceeds of crime legislation is also unique as it often reverses the onus on the defendant to prove that the property in question is not derived from nefarious activities, rather than the plaintiff having to prove that it was from nefarious activities."

Guilt Not Required: A Look at Criminal Asset Confiscation in Australia - Lawyer Monthly

Brian also discusses the legal criteria for asset forfeiture and the powers of the Australian Federal Police to confiscate property believed to be connected to a criminal act. Having your assets confiscated due to criminal allegations can have deleterious effects; how should clients prepare...

www.lawyer-monthly.com

We must be lucky here because it certainly doesn't seem to be abused like in the US. Perhaps it's because the police don't get to keep anything that's seized here.

The lower test of the balance of probabilities is basically what I was saying in that if you legally obtained the money it's very easy to prove. For an amount that's not too large simply having a job will cover it. For a fairly decent amount, like in this recent US case for instance, it's still easy to show you've had the means to acquire that amount of money legally, if in fact you did acquire it legally.

On the other hand, if they're a known drug dealer, bikie or gang member etc. that has little to no legal income source and has never paid tax but owns a two storey mansion and a couple of rental properties (all freehold), several high end cars and motorcycles, other assorted toys and is found with that same $100k though, they're done.

_____________________________
That amount of cash in such small denominations being transported by plane does scream of someone being up to no good though. Bank transfers are a thing after all.

 

[TexRex]

Transporting cash isn't a crime. Special circumstances may require a claim, such as major border crossing, but if an amount cannot reasonably be said to be associated with criminal conduct (which absolutely excludes "you were acting suspicious"), it should not be seized.

Some people don't trust banks. This is understandable. Banks are often really ****ing shady when it comes to handling money entrusted to them. One should not be penalized for not entrusting their assets to another.

Civil asset forfeiture should not exist.

 

[FPV MIC]

Transporting cash isn't a crime. Special circumstances may require a claim, such as major border crossing, but if an amount cannot reasonably be said to be associated with criminal conduct (which absolutely excludes "you were acting suspicious"), it should not be seized.

Some people don't trust banks. This is understandable. Banks are often really ****ing shady when it comes to handling money entrusted to them. One should not be penalized for not entrusting their assets to another.

Civil asset forfeiture should not exist.

I don't disagree with anything you've said here 👍

Edit: You're system does seem to be a lot more open to abuse than ours, and something I love about this forum is that I get to learn so much about other countries. I also learn about my own. Just this morning I learnt about a fairly recently introduced law called 'unexplained wealth'.

An example...

Detectives seize boats and motorcycles across Canberra and the South Coast belonging to bikie gang boss

New ACT laws have been used for the first time to seize about $500,000 worth of property owned by the Nomads bikie gang's national president, Michael Clark.

www.abc.net.au

... and apologies for straying off topic.

 

[Scaff]

We must be lucky here because it certainly doesn't seem to be abused like in the US. Perhaps it's because the police don't get to keep anything that's seized here.

The lower test of the balance of probabilities is basically what I was saying in that if you legally obtained the money it's very easy to prove. For an amount that's not too large simply having a job will cover it. For a fairly decent amount, like in this recent US case for instance, it's still easy to show you've had the means to acquire that amount of money legally, if in fact you did acquire it legally.

On the other hand, if they're a known drug dealer, bikie or gang member etc. that has little to no legal income source and has never paid tax but owns a two storey mansion and a couple of rental properties (all freehold), several high end cars and motorcycles, other assorted toys and is found with that same $100k though, they're done.

_____________________________
That amount of cash in such small denominations being transported by plane does scream of someone being up to no good though. Bank transfers are a thing after all.

Once again Criminal Forfeiture would more than cover this, Civil Forfeiture is to open to abuse (and it has been abused in Australia as well, not to the same degree as the US, but any abuse is too much).

Take this example, that illustrates your claim that it would be easy to prove money wasn't a result of illegal activity doesn't hold water.

The guy in question, in Australia, was caught growing a large amount of weed for personal use. The criminal court agreed that it wasn't a criminal enterprise, that he had not criminal proceeds from it. Civil forfeiture still took his house.

Let that sink in, a criminal court found no evidence the house was linked to or obtained via criminal activity. They still took it. Still feel confident you could prove it to the require standard when this failed. Proving a negative, which is what's required, is an aburd standard and the wrong burden to demand.

The reason they could do it? Because the weed grew there. That it was the location of a crime, no matter how minor, is enough. It allows the police in Australia to legally sieze money you have on you, and your car, should they wish to, if you are caught speeding and keep them.

Asset forfeiture | Noffs

Imagine you’re a US citizen, travelling across state lines with a large amount of cash. You’re not doing anything wrong - you’ve seen an ad for a second-hand car in another state and are making your way there with the cash to purchase it. On the way the police pull you over. You have nothing to...

noffs.org.au

Take the proceeds when you can prove, to a criminal standard, that it's been obtained illegally. Civil forfeiture has no place at all, it ignores due process and puts an utterly unfair and unjust burden of proof in place.

 

[FPV MIC]

Once again Criminal Forfeiture would more than cover this, Civil Forfeiture is to open to abuse (and it has been abused in Australia as well, not to the same degree as the US, but any abuse is too much).

Take this example, that illustrates your claim that it would be easy to prove money wasn't a result of illegal activity doesn't hold water.

The guy in question, in Australia, was caught growing a large amount of weed for personal use. The criminal court agreed that it wasn't a criminal enterprise, that he had not criminal proceeds from it. Civil forfeiture still took his house.

Let that sink in, a criminal court found no evidence the house was linked to or obtained via criminal activity. They still took it. Still feel confident you could prove it to the require standard when this failed. Proving a negative, which is what's required, is an aburd standard and the wrong burden to demand.

The reason they could do it? Because the weed grew there. That it was the location of a crime, no matter how minor, is enough. It allows the police in Australia to legally sieze money you have on you, and your car, should they wish to, if you are caught speeding and keep them.

Asset forfeiture | Noffs

Imagine you’re a US citizen, travelling across state lines with a large amount of cash. You’re not doing anything wrong - you’ve seen an ad for a second-hand car in another state and are making your way there with the cash to purchase it. On the way the police pull you over. You have nothing to...

noffs.org.au

Take the proceeds when you can prove, to a criminal standard, that it's been obtained illegally. Civil forfeiture has no place at all, it ignores due process and puts an utterly unfair and unjust burden of proof in place.

Without context it's hard to say. It also seems like an outlier, not that it particularly excuses it. Did he try and get it back? Seems to me like he would have a good case. And yes, I still feel confident in proof of anything I have, or would have in my possession simply because I'm not breaking any laws like he was. Anything over one plant is a criminal offence here so he was still breaking the law.

Speeding isn't a criminal offense here, it falls under the road traffic act unless you commit a very serious driving offence. The police here also have very limited powers to seize a vehicle and I have never, ever heard of house or money being seized due to a traffic offence.

 

[TexRex]

... and apologies for straying off topic.

Honestly I think this is exactly the place for discussion about transparency (or a lack thereof) and accountability (or a lack thereof) in policing.

 

[Scaff]

Without context it's hard to say. It also seems like an outlier, not that it particularly excuses it. Did he try and get it back? Seems to me like he would have a good case.

The way the laws are written he has zero case to get it back.

And yes, I still feel confident in proof of anything I have, or would have in my possession simply because I'm not breaking any laws like he was. Anything over one plant is a criminal offence here so he was still breaking the law.

And that justifies what happened?

Speeding isn't a criminal offense here, it falls under the road traffic act unless you commit a very serious driving offence.

These aren't criminal offences being used to seize property either.

The police here also have very limited powers to seize a vehicle and I have never, ever heard of house or money being seized due to a traffic offence.

The law quite clearly shows they actually have all the power they need to do exactly that to a vehicle (and I was clearly talking about cars and money in regard to traffic offences - not houses).

Outliers they may be, but that doesn't make any of this just at all.

NSW police seek to auction off car of convicted anti-coal activist under Proceeds of Crime Act

Blockade Australia says 26-year-old climate activist had been living in the car when she was arrested in Newcastle

www.theguardian.com

 

[FPV MIC]

The way the laws are written he has zero case to get it back.


And that justifies what happened?


These aren't criminal offences being used to seize property either.


The law quite clearly shows they actually have all the power they need to do exactly that to a vehicle (and I was clearly talking about cars and money in regard to traffic offences - not houses).

Outliers they may be, but that doesn't make any of this just at all.

NSW police seek to auction off car of convicted anti-coal activist under Proceeds of Crime Act

Blockade Australia says 26-year-old climate activist had been living in the car when she was arrested in Newcastle

www.theguardian.com

But growing even one plant (it's zero hydroponically) is a criminal offence here and the other case also involved a criminal offence, and hasn't from what I can tell concluded yet. That the first one wasn't considered a criminal enterprise (that's a group of growers) or that he didn't profit from it doesn't mean he didn't break any criminal laws.

Do I think it's right these people can have unrelated property taken, hell no, but what I was saying is if you aren't committing a criminal offence it much easier for you to prove it's yours and once you do that it then falls on the police to prove otherwise.


This is from a lawyer I've used before.

Cultivation of Cannabis & Growing Marijuana Charges | Penalties, Defences

The maximum penalty for cultivating a large commercial quantity of cannabis is a fine of $500,000 or imprisonment for life, or both.

www.caldicottlawyers.com.au

''The maximum penalty for cultivating more than 1 plant but less than 5 plants, is a fine of $1,000 or 6 months imprisonment, or both.''

This is what criminal enterprise looks like here:

"Whilst he may be a hired hand, he was hired by a sophisticated criminal enterprise to play a very significant role in their cultivation of a multi-million-dollar operation," he said.

Judge lashes illegal gardener who grew 'enormous' shipping container-sized crop of cannabis

A Vietnamese man is sentenced to seven years behind bars for growing one of the biggest marijuana crops ever discovered in Western Australia, with an estimated street value of more than $17 million.

www.abc.net.au

 

[Imari]

When I was in like 6th grade learning about the civil war (and this should tell you something about my parents), I vividly recall the look on my teacher's face when I asked her who won.

That seems like a fair question to me. I wouldn't have said it was clear from the observed state of affairs 150 years later.

 

[UKMikey]

That seems like a fair question to me. I wouldn't have said it was clear from the observed state of affairs 150 years later.

Um, slavery is illegal in the US, right? I'm not sure how anyone could argue that the South won, if that's what they were fighting over.

 

[Imari]

Um, slavery is illegal in the US, right? I'm not sure how anyone could argue that the South won, if that's what they were fighting over.

If the South won, does slavery stick around for the entire next 150-odd years? That's it, that locks in slavery forever if the South wins that one war?

Or do the economic inefficiencies and peer pressures from the rest of the developed world eventually do away with it as an explicit institution? Would Americans have eventually pushed to abolish slavery even with a Southern victory, just much later? Would there have been more wars until the anti-slavery side eventually won? Would there have been a massive slave uprising, making the institution of slavery unsustainable? Something else entirely?

There's any number of things that could have happened, and as an uneducated child the whole point of asking the question is to know the answer. One could absolutely see potential scenarios in which the South could have won, if one were to also assume that there continues to be 150 years of history and development afterwards and the entire country doesn't just stagnate.

The fact that slavery doesn't exist in 2021 doesn't tell you anything about who won a war 150 years ago. Most developed countries did away with slavery without the need for a war over it, and there's nothing to suggest that the same was impossible for the US.

 

[BobK]

One of our own, @Caz, almost lost his two million dollar business through civil asset forfeiture. He owned a motel, and based on the (alleged) fact a few guests had committed drug-related crimes in rooms in the motel, his property should be forfeited.

The discussion is here.

Note there was no hint whatsoever that Caz ad done anything wrong. The mere fact a "criminal activity" had occurred on the premises was sufficient for the government to seize it regardless of who the perpetrators were.

 

[Chrunch Houston]

Remember this guy and his family's motel.

https://www.gtplanet.net/forum/threads/my-fight-with-the-us-government.225597/

Is it treed, is that what it's called?

 

[Scaff]

But growing even one plant (it's zero hydroponically) is a criminal offence here and the other case also involved a criminal offence, and hasn't from what I can tell concluded yet. That the first one wasn't considered a criminal enterprise (that's a group of growers) or that he didn't profit from it doesn't mean he didn't break any criminal laws.

I wasn't disputing that a law had been broken, it's that the crime involved had nothing at all to do with the property being seized, as such it should not be a factor at all.

Do I think it's right these people can have unrelated property taken, hell no,

Which is the point I'm making. Keep in mind that in Australia you still don't have to have committed a crime, or even been charged with one.

but what I was saying is if you aren't committing a criminal offence it much easier for you to prove it's yours and once you do that it then falls on the police to prove otherwise.

Sorry, but that's simply not true.

The standard of evidence applies to the prosecutor, not the defendant.

Australian law:

"Burden/Standard of Proof: The obligation to prove what is alleged. In criminal cases, this obligation rests on the prosecution, which must prove its case beyond a reasonable doubt. In civil cases, it rests on the applicant, who must prove his or her case on the balance of probabilities."

Burden of proof (in the context of contracts) - Law Dictionary

‘Burden of proof’ refers to the responsibility borne by a party in legal proceedings to actively prove their case, in contrast to the answerable party,

sklawyers.com.au

It's not the defendant that has to prove they are innocent 'on a balance of probabilities, it's the applicants' job to prove guilt 'on a balance of probabilities. That makes it harder for you to prove innocence in a civil case than a criminal one, which is why not having committed a crime doesn't actually matter. The burden can shift, but as the source illustrates, that's for contract law, and that's not what this is.

Add in that not only is it more difficult to prove you are innocent (as it's easier to reach the standard of proof for guilt), you don;t get public defence and it's going to cost you to defend the case.

Um, slavery is illegal in the US, right? I'm not sure how anyone could argue that the South won, if that's what they were fighting over.

Yes, and disturbingly no.

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

Legally you can treat prisoners as slaves in the US, as long as they have been duly convicted.

 

[merseyxshore]

Yes, and disturbingly no.

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

Legally you can treat prisoners as slaves in the US, as long as they have been duly convicted.

That Netflix documentary '13th' blew my mind on this subject.

 

[BobK]

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

And yet the courts have ruled repeatedly that the draft is legal...

 

[Danoff]

If the South won, does slavery stick around for the entire next 150-odd years? That's it, that locks in slavery forever if the South wins that one war?

This is exactly what I was thinking believe it or not - that the south might have won and slavery eventually was done away with anyway.

 

[FPV MIC]

I wasn't disputing that a law had been broken, it's that the crime involved had nothing at all to do with the property being seized, as such it should not be a factor at all.


Which is the point I'm making. Keep in mind that in Australia you still don't have to have committed a crime, or even been charged with one.




Sorry, but that's simply not true.

The standard of evidence applies to the prosecutor, not the defendant.

Australian law:

"Burden/Standard of Proof: The obligation to prove what is alleged. In criminal cases, this obligation rests on the prosecution, which must prove its case beyond a reasonable doubt. In civil cases, it rests on the applicant, who must prove his or her case on the balance of probabilities."

Burden of proof (in the context of contracts) - Law Dictionary

‘Burden of proof’ refers to the responsibility borne by a party in legal proceedings to actively prove their case, in contrast to the answerable party,

sklawyers.com.au

It's not the defendant that has to prove they are innocent 'on a balance of probabilities, it's the applicants' job to prove guilt 'on a balance of probabilities. That makes it harder for you to prove innocence in a civil case than a criminal one, which is why not having committed a crime doesn't actually matter. The burden can shift, but as the source illustrates, that's for contract law, and that's not what this is.

Add in that not only is it more difficult to prove you are innocent (as it's easier to reach the standard of proof for guilt), you don;t get public defence and it's going to cost you to defend the case.

As I've said, I don't agree with assets being taken by the police for no reason but in the Australian cases you've shown me there was reason.

It's pretty simple here really...

1. Dude grows dope in house, gets caught committing a crime, the house becomes part of the equipment used to grow the crop and therefore part of the crime, house gone.

But on the other hand,

2a. Woman doesn't commit crime but has money on her, if that money is legally obtained there will be some sort of money trail and it's easily proved, she keeps the money. Here you get to do that first, which from what you've said doesn't seem to happen in the US and is open to abuse.

2b. If the police still suspect the money is illegal and want to keep going, then it goes to court (proceeds of crime or similar), and it becomes the courts taking the money/property with, unlike the US, the police having no say in what happens to the money/property. Also unlike the US, if at first you fail in court it can still be contested here. I'm in agreeance with you here that it should still be up to the police to prove your guilt (by forensic account or similar), not the other way around.

The above two incidents are vastly different and what I've been talking about is that we have the opportunity to show the money is legal before it is confiscated here, as in 2a and without 2b ever happening. They don't use 2b on just anyone here, it's targeted at known criminals, people living beyond their means, or people caught doing criminal activities. This is the bit you seem to be focused on and it's also the bit we agree on. 1 is in different ballpark altogether.

I'm not sure if you think this or not but it seems like you don't think 2a happens here.

Proceeds of crime

See also: Criminal Assets Confiscation Taskforce (CACT) Money laundering and cuckoo-smurfing The Proceeds of Crime Act 2002 The Proceeds of Crime Act 2002 (the Act) was passed on 11 October 2002 and came into operation on 1 January 2003. The Act provides a scheme to trace, restrain and...

www.afp.gov.au

Criminal Assets Confiscation Taskforce (CACT)

Launched in January 2011, the Criminal Assets Confiscation Taskforce (CACT) was formed to enhance the identification and pursuit of potential criminal asset confiscation matters. The AFP-led CACT is a Commonwealth initiative dedicated to taking the profit out of crime by targeting criminals and...

www.afp.gov.au

Unexplained Wealth Laws in Australia | NGM Lawyers

Are you facing an Unexplained Wealth Laws Order? Contact us for 24/7 Expert Legal Advice.

ngm.com.au

 

[Danoff]

As I've said, I don't agree with assets being taken by the police for no reason but in the Australian cases you've shown me there was reason.

It's pretty simple here really...

1. Dude grows dope in house, gets caught committing a crime, the house becomes part of the equipment used to grow the crop and therefore part of the crime, house gone.

But on the other hand,

2a. Woman doesn't commit crime but has money on her, if that money is legally obtained there will be some sort of money trail and it's easily proved, she keeps the money. Here you get to do that first, which from what you've said doesn't seem to happen in the US and is open to abuse.

2b. If the police still suspect the money is illegal and want to keep going, then it goes to court (proceeds of crime or similar), and it becomes the courts taking the money/property with, unlike the US, the police having no say in what happens to the money/property. Also unlike the US, if at first you fail in court it can still be contested here. I'm in agreeance with you here that it should still be up to the police to prove your guilt (by forensic account or similar), not the other way around.

The above two incidents are vastly different and what I've been talking about is that we have the opportunity to show the money is legal before it is confiscated here, as in 2a and without 2b ever happening. They don't use 2b on just anyone here, it's targeted at known criminals, people living beyond their means, or people caught doing criminal activities. This is the bit you seem to be focused on and it's also the bit we agree on. 1 is in different ballpark altogether.

I'm not sure if you think this or not but it seems like you don't think 2a happens here.

Proceeds of crime

See also: Criminal Assets Confiscation Taskforce (CACT) Money laundering and cuckoo-smurfing The Proceeds of Crime Act 2002 The Proceeds of Crime Act 2002 (the Act) was passed on 11 October 2002 and came into operation on 1 January 2003. The Act provides a scheme to trace, restrain and...

www.afp.gov.au

Criminal Assets Confiscation Taskforce (CACT)

Launched in January 2011, the Criminal Assets Confiscation Taskforce (CACT) was formed to enhance the identification and pursuit of potential criminal asset confiscation matters. The AFP-led CACT is a Commonwealth initiative dedicated to taking the profit out of crime by targeting criminals and...

www.afp.gov.au

Unexplained Wealth Laws in Australia | NGM Lawyers

Are you facing an Unexplained Wealth Laws Order? Contact us for 24/7 Expert Legal Advice.

ngm.com.au

From your link:

What are the steps in confiscating proceeds of crime?​

The Proceeds of Crime Act 2002 (the Act) provides a scheme to trace, restrain and confiscate the proceeds of crime against Commonwealth law. In some circumstances, it can also be used to confiscate the proceeds of crime against foreign law or the proceeds of crime against State law (if those proceeds have been used in a way that contravenes Commonwealth law).

Removing the proceeds of crime generally involves the following steps:

1. Substantiation of unlawful conduct and property identification (Investigation): The responsibility for investigating cases and collecting evidence rests with Commonwealth investigative agencies like the AFP. An investigative agency locates and collects the evidence and other material required to pursue the proceeds of crime.
2. Restraint of property: In most cases, though not all, a court order (restraining order) is required to preserve property pending the outcome of confiscation proceedings. This order prohibits the disposal of property, or ability to deal with property, either absolutely or subject to conditions. In appropriate cases, the court may also order that restrained property be taken into the custody and control of the Official Trustee in Bankruptcy on behalf of the Commonwealth In some situations the Act provides that property cannot be confiscated unless it has previously been subject to a restraining order. In other instances confiscation can proceed without restraining orders previously having been made.
3. Confiscation of property: Confiscation is the end of the legal process and usually involves a court order that specific property be confiscated to 'the Commonwealth'. Confiscation proceedings can be contested and often require that further investigations be conducted by the investigating agency to support the litigation proceedings.
4. Disposal of confiscated property: Once property is officially confiscated, the Australian Financial Security Authority will then liquidate the property and bank the proceeds into the Confiscated Assets Account established by the Act.

Step 1 says that some evidence is collected. In the US, the bar for evidence is low. Step 2, a court order being required would be a step up from the US, though that's explicitly called out as not being necessary in Australia. I think in the US is normal for a court order not to be issued whereas it seems like the other way around in Australia, but I don't see anything requiring it to stay that way. Step 3 again says it doesn't always involve a court order. That's a little concerning. In the US I think it rarely involves a court order.

I dunno, this doesn't look fundamentally different to me, just usually implemented with more oversight.

 

[Scaff]

As I've said, I don't agree with assets being taken by the police for no reason but in the Australian cases you've shown me there was reason.

It's pretty simple here really...

1. Dude grows dope in house, gets caught committing a crime, the house becomes part of the equipment used to grow the crop and therefore part of the crime, house gone.

But on the other hand,

2a. Woman doesn't commit crime but has money on her, if that money is legally obtained there will be some sort of money trail and it's easily proved, she keeps the money. Here you get to do that first, which from what you've said doesn't seem to happen in the US and is open to abuse.

2b. If the police still suspect the money is illegal and want to keep going, then it goes to court (proceeds of crime or similar), and it becomes the courts taking the money/property with,

It's really not that simple and you seem to be mixing up Criminal Asset Forfeiture actions with Civil Ones, which do not require a court case, a guilty verdict, or even charges to be leveled.

Yes in Australia they need to obtain a restraining order, but you need to remember that this requires only a civil burden of proof to be met, you don't need to be even charged with a crime and you don't even need to have been informed (as it's done via a restraining order, in Australia the target of the order doesn't need to be informed of the action being asked for against them).

Chapter 5

Navigation: Previous Page | Contents | Next Page Chapter 5 Confiscating the Proceeds of Crime Introduction 5.1 Although this inquiry initially focussed on the effectiveness of association-type offences

www.aph.gov.au

unlike the US, the police having no say in what happens to the money/property.

In Australia the state does, which then uses the money for, that's right, crime prevention measures.

"The AFP can then apply after a certain period of time or after concurrent criminal convictions are secured to forfeit the property to the Crown. The value of forfeited assets is credited to a Crown account called the Confiscated Assets Account and, subject to the discretion of the Minister for Home Affairs, the funds are used for various crime prevention measures such as the installation of CCTV in urban areas."

Guilt Not Required: A Look at Criminal Asset Confiscation in Australia - Lawyer Monthly

Brian also discusses the legal criteria for asset forfeiture and the powers of the Australian Federal Police to confiscate property believed to be connected to a criminal act. Having your assets confiscated due to criminal allegations can have deleterious effects; how should clients prepare...

www.lawyer-monthly.com

Also unlike the US, if at first you fail in court it can still be contested here.

You can in the US as well, however in both cases the burden and standard of proof work against you (you can continue to claim that you think it would be easy to prove legitimacy, Australian legal experts utterly disagree with you) and you have to pay for this.

"It’s worth noting that proceeds of crime litigation in Australia is generally regarded as civil in nature, meaning that the relevant threshold standard is the lower test of the balance of probabilities rather than the higher criminal standard of beyond reasonable doubt.

Proceeds of crime legislation is also unique as it often reverses the onus on the defendant to prove that the property in question is not derived from nefarious activities, rather than the plaintiff having to prove that it was from nefarious activities."

Guilt Not Required: A Look at Criminal Asset Confiscation in Australia - Lawyer Monthly

Brian also discusses the legal criteria for asset forfeiture and the powers of the Australian Federal Police to confiscate property believed to be connected to a criminal act. Having your assets confiscated due to criminal allegations can have deleterious effects; how should clients prepare...

www.lawyer-monthly.com

I'm in agreeance with you here that it should still be up to the police to prove your guilt (by forensic account or similar), not the other way around.

Which it is not and why it's open to abuse.

The above two incidents are vastly different and what I've been talking about is that we have the opportunity to show the money is legal before it is confiscated here, as in 2a and without 2b ever happening. They don't use 2b on just anyone here, it's targeted at known criminals, people living beyond their means, or people caught doing criminal activities. This is the bit you seem to be focused on and it's also the bit we agree on. 1 is in different ballpark altogether.

I'm not sure if you think this or not but it seems like you don't think 2a happens here.

Proceeds of crime

See also: Criminal Assets Confiscation Taskforce (CACT) Money laundering and cuckoo-smurfing The Proceeds of Crime Act 2002 The Proceeds of Crime Act 2002 (the Act) was passed on 11 October 2002 and came into operation on 1 January 2003. The Act provides a scheme to trace, restrain and...

www.afp.gov.au

Criminal Assets Confiscation Taskforce (CACT)

Launched in January 2011, the Criminal Assets Confiscation Taskforce (CACT) was formed to enhance the identification and pursuit of potential criminal asset confiscation matters. The AFP-led CACT is a Commonwealth initiative dedicated to taking the profit out of crime by targeting criminals and...

www.afp.gov.au

Unexplained Wealth Laws in Australia | NGM Lawyers

Are you facing an Unexplained Wealth Laws Order? Contact us for 24/7 Expert Legal Advice.

ngm.com.au

All of the above is mainly to do with Criminal Asset Forfeiture, which is utterly and completely different.

We are talking about Civil Asset Forfeiture here, different standards, different burdens, and different processes.

However, even with that, you don't seem to have actually followed through and read the acts in question. I have, and as such you will have missed such great bits as this:

"Forfeiture orders can be made, forfeiting property to the Commonwealth, if certain offences have been committed. (It is not always a requirement that a person has been convicted of such an offence.)"

So again you don't need to actually have been convicted of an offence for your property to be seized.


"The fact that a person has been acquitted of an offence with which the person has been charged does not affect the court’s power to make a *forfeiture order under section 47 or 49 in relation to the offence."

Oh, you can be acquitted of a crime and you still get your property seized.


"if no evidence is given that tends to show that the property was not used in, or in connection with, the commission of the offence—the court must presume that the property was used in, or in connection with, the commission of the offence;"

Here's that burden of proof being reversed, in a criminal case!


"The court hearing the application may, at any time before finally determining the application, direct the *responsible authority to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published."

You do get told about the seizure, but at the court discussion, which means it can be after the judgment has been made and the order issued, it doesn't need to be before it's made.

I honestly could keep going on this one, the above is just a small section of the way the law is written to be stacked against the property owner.

 

[Danoff]

It's really not that simple and you seem to be mixing up Criminal Asset Forfeiture actions with Civil Ones, which do not require a court case, a guilty verdict, or even charges to be leveled.

Yes in Australia they need to obtain a restraining order, but you need to remember that this requires only a civil burden of proof to be met, you don't need to be even charged with a crime and you don't even need to have been informed (as it's done via a restraining order, in Australia the target of the order doesn't need to be informed of the action being asked for against them).

Chapter 5

Navigation: Previous Page | Contents | Next Page Chapter 5 Confiscating the Proceeds of Crime Introduction 5.1 Although this inquiry initially focussed on the effectiveness of association-type offences

www.aph.gov.au

In Australia the state does, which then uses the money for, that's right, crime prevention measures.

"The AFP can then apply after a certain period of time or after concurrent criminal convictions are secured to forfeit the property to the Crown. The value of forfeited assets is credited to a Crown account called the Confiscated Assets Account and, subject to the discretion of the Minister for Home Affairs, the funds are used for various crime prevention measures such as the installation of CCTV in urban areas."

Guilt Not Required: A Look at Criminal Asset Confiscation in Australia - Lawyer Monthly

Brian also discusses the legal criteria for asset forfeiture and the powers of the Australian Federal Police to confiscate property believed to be connected to a criminal act. Having your assets confiscated due to criminal allegations can have deleterious effects; how should clients prepare...

www.lawyer-monthly.com

You can in the US as well, however in both cases the burden and standard of proof work against you (you can continue to claim that you think it would be easy to prove legitimacy, Australian legal experts utterly disagree with you) and you have to pay for this.

"It’s worth noting that proceeds of crime litigation in Australia is generally regarded as civil in nature, meaning that the relevant threshold standard is the lower test of the balance of probabilities rather than the higher criminal standard of beyond reasonable doubt.

Proceeds of crime legislation is also unique as it often reverses the onus on the defendant to prove that the property in question is not derived from nefarious activities, rather than the plaintiff having to prove that it was from nefarious activities."

Guilt Not Required: A Look at Criminal Asset Confiscation in Australia - Lawyer Monthly

Brian also discusses the legal criteria for asset forfeiture and the powers of the Australian Federal Police to confiscate property believed to be connected to a criminal act. Having your assets confiscated due to criminal allegations can have deleterious effects; how should clients prepare...

www.lawyer-monthly.com

Which it is not and why it's open to abuse.



All of the above is mainly to do with Criminal Asset Forfeiture, which is utterly and completely different.

We are talking about Civil Asset Forfeiture here, different standards, different burdens, and different processes.

However, even with that, you don't seem to have actually followed through and read the acts in question. I have, and as such you will have missed such great bits as this:

"Forfeiture orders can be made, forfeiting property to the Commonwealth, if certain offences have been committed. (It is not always a requirement that a person has been convicted of such an offence.)"

So again you don't need to actually have been convicted of an offence for your property to be seized.


"The fact that a person has been acquitted of an offence with which the person has been charged does not affect the court’s power to make a *forfeiture order under section 47 or 49 in relation to the offence."

Oh, you can be acquitted of a crime and you still get your property seized.


"if no evidence is given that tends to show that the property was not used in, or in connection with, the commission of the offence—the court must presume that the property was used in, or in connection with, the commission of the offence;"

Here's that burden of proof being reversed, in a criminal case!


"The court hearing the application may, at any time before finally determining the application, direct the *responsible authority to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published."

You do get told about the seizure, but at the court discussion, which means it can be after the judgment has been made and the order issued, it doesn't need to be before it's made.

I honestly could keep going on this one, the above is just a small section of the way the law is written to be stacked against the property owner.

The Australian legal system, like the US, has English Common Law as its ancestor. It doesn't surprise me then that both legal systems have less respect for property than other kinds of court determinations. This is of course to be expected and is probably good. In the US, property is bigtime secondary to injury or imprisonment. You can have a small amount of property seized (in the form of a fine) for being parked in a no-parking zone even though there were no signs indicating that that it was a no parking zone and you contested it with pictures (ask me how I know this)!

This is precisely how the Texas abortion law managed to skirt injunction at the supreme court - and why it was designed to do so. It levied civil fines against people rather than criminal charges - and courts don't usually enact an injunction over laws which may be unconstitutional but which only involve financial penalties (I know this is a gross interpretation of the Texas law, but here we are).

Anyway, I see it as perfectly consistent that both Australia and the US appear to be rather generous with property seizure authority. It's not good, I think it's an obvious violation of property rights, due process, and is deeply authoritarian, but it's not wholly inconsistent with both of the legal systems - including some very foundational concepts that they're based on.

 

[Scaff]

The Australian legal system, like the US, has English Common Law as its ancestor. It doesn't surprise me then that both legal systems have less respect for property than other kinds of court determinations. This is of course to be expected and is probably good. In the US, property is bigtime secondary to injury or imprisonment. You can have a small amount of property seized (in the form of a fine) for being parked in a no-parking zone even though there were no signs indicating that that it was a no parking zone and you contested it with pictures (ask me how I know this)!

This is precisely how the Texas abortion law managed to skirt injunction at the supreme court - and why it was designed to do so. It levied civil fines against people rather than criminal charges - and courts don't usually enact an injunction over laws which may be unconstitutional but which only involve financial penalties (I know this is a gross interpretation of the Texas law, but here we are).

Anyway, I see it as perfectly consistent that both Australia and the US appear to be rather generous with property seizure authority. It's not good, I think it's an obvious violation of property rights, due process, and is deeply authoritarian, but it's not wholly inconsistent with both of the legal systems - including some very foundational concepts that they're based on.

Yep, nor a surprise as the UK system is almost identical to the Australian one.

"It is an unfortunate fact that the UK’s law enforcement agencies have often abused their seizure powers under POCA."

Cash & Asset Seizure

The UK’s law enforcement agencies have wide-ranging powers under the Proceeds of Crime Act 2002 (POCA) to seize cash and valuable assets from individuals and organisations.

www.hickmanandrose.co.uk

 

[FPV MIC]

From your link:

What are the steps in confiscating proceeds of crime?​

The Proceeds of Crime Act 2002 (the Act) provides a scheme to trace, restrain and confiscate the proceeds of crime against Commonwealth law. In some circumstances, it can also be used to confiscate the proceeds of crime against foreign law or the proceeds of crime against State law (if those proceeds have been used in a way that contravenes Commonwealth law).

Removing the proceeds of crime generally involves the following steps:

1. Substantiation of unlawful conduct and property identification (Investigation): The responsibility for investigating cases and collecting evidence rests with Commonwealth investigative agencies like the AFP. An investigative agency locates and collects the evidence and other material required to pursue the proceeds of crime.
2. Restraint of property: In most cases, though not all, a court order (restraining order) is required to preserve property pending the outcome of confiscation proceedings. This order prohibits the disposal of property, or ability to deal with property, either absolutely or subject to conditions. In appropriate cases, the court may also order that restrained property be taken into the custody and control of the Official Trustee in Bankruptcy on behalf of the Commonwealth In some situations the Act provides that property cannot be confiscated unless it has previously been subject to a restraining order. In other instances confiscation can proceed without restraining orders previously having been made.
3. Confiscation of property: Confiscation is the end of the legal process and usually involves a court order that specific property be confiscated to 'the Commonwealth'. Confiscation proceedings can be contested and often require that further investigations be conducted by the investigating agency to support the litigation proceedings.
4. Disposal of confiscated property: Once property is officially confiscated, the Australian Financial Security Authority will then liquidate the property and bank the proceeds into the Confiscated Assets Account established by the Act.

Step 1 says that some evidence is collected. In the US, the bar for evidence is low. Step 2, a court order being required would be a step up from the US, though that's explicitly called out as not being necessary in Australia. I think in the US is normal for a court order not to be issued whereas it seems like the other way around in Australia, but I don't see anything requiring it to stay that way. Step 3 again says it doesn't always involve a court order. That's a little concerning. In the US I think it rarely involves a court order.

I dunno, this doesn't look fundamentally different to me, just usually implemented with more oversight.

That's a fair assessment, but I would say it's a lot more than usually.

It's really not that simple and you seem to be mixing up Criminal Asset Forfeiture actions with Civil Ones, which do not require a court case, a guilty verdict, or even charges to be leveled.

Yes in Australia they need to obtain a restraining order, but you need to remember that this requires only a civil burden of proof to be met, you don't need to be even charged with a crime and you don't even need to have been informed (as it's done via a restraining order, in Australia the target of the order doesn't need to be informed of the action being asked for against them).

Chapter 5

Navigation: Previous Page | Contents | Next Page Chapter 5 Confiscating the Proceeds of Crime Introduction 5.1 Although this inquiry initially focussed on the effectiveness of association-type offences

www.aph.gov.au

In Australia the state does, which then uses the money for, that's right, crime prevention measures.

"The AFP can then apply after a certain period of time or after concurrent criminal convictions are secured to forfeit the property to the Crown. The value of forfeited assets is credited to a Crown account called the Confiscated Assets Account and, subject to the discretion of the Minister for Home Affairs, the funds are used for various crime prevention measures such as the installation of CCTV in urban areas."

Guilt Not Required: A Look at Criminal Asset Confiscation in Australia - Lawyer Monthly

Brian also discusses the legal criteria for asset forfeiture and the powers of the Australian Federal Police to confiscate property believed to be connected to a criminal act. Having your assets confiscated due to criminal allegations can have deleterious effects; how should clients prepare...

www.lawyer-monthly.com

You can in the US as well, however in both cases the burden and standard of proof work against you (you can continue to claim that you think it would be easy to prove legitimacy, Australian legal experts utterly disagree with you) and you have to pay for this.

"It’s worth noting that proceeds of crime litigation in Australia is generally regarded as civil in nature, meaning that the relevant threshold standard is the lower test of the balance of probabilities rather than the higher criminal standard of beyond reasonable doubt.

Proceeds of crime legislation is also unique as it often reverses the onus on the defendant to prove that the property in question is not derived from nefarious activities, rather than the plaintiff having to prove that it was from nefarious activities."

Guilt Not Required: A Look at Criminal Asset Confiscation in Australia - Lawyer Monthly

Brian also discusses the legal criteria for asset forfeiture and the powers of the Australian Federal Police to confiscate property believed to be connected to a criminal act. Having your assets confiscated due to criminal allegations can have deleterious effects; how should clients prepare...

www.lawyer-monthly.com

Which it is not and why it's open to abuse.



All of the above is mainly to do with Criminal Asset Forfeiture, which is utterly and completely different.

We are talking about Civil Asset Forfeiture here, different standards, different burdens, and different processes.

However, even with that, you don't seem to have actually followed through and read the acts in question. I have, and as such you will have missed such great bits as this:

"Forfeiture orders can be made, forfeiting property to the Commonwealth, if certain offences have been committed. (It is not always a requirement that a person has been convicted of such an offence.)"

So again you don't need to actually have been convicted of an offence for your property to be seized.


"The fact that a person has been acquitted of an offence with which the person has been charged does not affect the court’s power to make a *forfeiture order under section 47 or 49 in relation to the offence."

Oh, you can be acquitted of a crime and you still get your property seized.


"if no evidence is given that tends to show that the property was not used in, or in connection with, the commission of the offence—the court must presume that the property was used in, or in connection with, the commission of the offence;"

Here's that burden of proof being reversed, in a criminal case!


"The court hearing the application may, at any time before finally determining the application, direct the *responsible authority to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published."

You do get told about the seizure, but at the court discussion, which means it can be after the judgment has been made and the order issued, it doesn't need to be before it's made.

I honestly could keep going on this one, the above is just a small section of the way the law is written to be stacked against the property owner.

This part is from your link,

For example, if a drug dealer used the garage of his family home to store drugs, arguably that home then becomes tainted and the allegation can be made that the home has been used as an instrument of crime.

... and that's not what I've been talking about. I'm talking about the person that's not a drug dealer. The drug dealer risked his house when he used for a criminal activity.

Anecdotally, I'm not a known criminal, I don't live beyond my means and haven't been caught doing an illegal act, I paid for my house, can prove that I paid for my house and don't use it for illegal activity so there's no way it can just be taken. It wouldn't make it to any court here, and why would the police even try? I don't understand why you're trying to make it sound like they would. The same would apply if I had 100k in my possession on a plane.

Chapter 5 is about confiscating proceeds of crime. I'm talking from the point of view of the person who doesn't have proceeds of crime. It's easy to show where and how you get things if you don't have proceeds of crime. There's a money trail.

 

[Danoff]

The same would apply if I had 100k in my possession on a plane.

I wouldn't recommend trying that one. Because I don't think you're right.

 

[FPV MIC]

I wouldn't recommend trying that one. Because I don't think you're right.

I wouldn't be silly enough to try it, because as I mentioned before bank transfers are a thing.

 

[Imari]

That's a fair assessment, but I would say it's a lot more than usually.

This part is from your link,

For example, if a drug dealer used the garage of his family home to store drugs, arguably that home then becomes tainted and the allegation can be made that the home has been used as an instrument of crime.

... and that's not what I've been talking about. I'm talking about the person that's not a drug dealer. The drug dealer risked his house when he used for a criminal activity.

Anecdotally, I'm not a known criminal, I don't live beyond my means and haven't been caught doing an illegal act, I paid for my house, can prove that I paid for my house and don't use it for illegal activity so there's no way it can just be taken. It wouldn't make it to any court here, and why would the police even try? I don't understand why you're trying to make it sound like they would. The same would apply if I had 100k in my possession on a plane.

Chapter 5 is about confiscating proceeds of crime. I'm talking from the point of view of the person who doesn't have proceeds of crime. It's easy to show where and how you get things if you don't have proceeds of crime. There's a money trail.

Australian police are less corrupt than it seems like American police are, so you're far less likely to even be in the situation in the first place. I think it would require the police having some sort of vendetta against you for it to happen here, whereas in the US it just seems to happen randomly as a matter of their daily duties.

That said, looking at some of the corrupt bollocks going on with the police and politicians at the moment I absolutely wouldn't put it past anyone using these laws as retaliation. I'm sort of surprised that Jordan Shanks/FriendlyJordies didn't get all his production equipment seized.

 

[Scaff]

That's a fair assessment, but I would say it's a lot more than usually.

This part is from your link,

For example, if a drug dealer used the garage of his family home to store drugs, arguably that home then becomes tainted and the allegation can be made that the home has been used as an instrument of crime.

... and that's not what I've been talking about. I'm talking about the person that's not a drug dealer. The drug dealer risked his house when he used for a criminal activity.

Anecdotally, I'm not a known criminal, I don't live beyond my means and haven't been caught doing an illegal act, I paid for my house, can prove that I paid for my house and don't use it for illegal activity so there's no way it can just be taken. It wouldn't make it to any court here, and why would the police even try? I don't understand why you're trying to make it sound like they would. The same would apply if I had 100k in my possession on a plane.

Chapter 5 is about confiscating proceeds of crime. I'm talking from the point of view of the person who doesn't have proceeds of crime. It's easy to show where and how you get things if you don't have proceeds of crime. There's a money trail.

Which completely and utterly ignores the majority of the act which clearly states that you don't have to have been arrested, charged or even found guilty for this to happen.

They are talking about suspects here.

I even quoted you directly the part of the act that shows you they can mistakenly charge you, you get get acquitted and they still can seize your assets. And once again, no it is not easy to prove that you didn't gain them illegally, I've cited the burden of proof from the actual act, I've cited Australian layers saying its not easy. That you have a bank account and audit trail doesn't automatically make it easy, as with Money Laundering you also have both, and based on the standard and burden required, the law could claim that and it would be on you to prove that's not the case (and you don't get to prove it to a balance of probability, that's their (low) hurdle to pass.

Take the guy growing weed for personal use. The criminal court agreed that he never made a penny in profit from doing so, that it was all for personal use, they agreed 100% that the house wasn't a proceed or crime, at a later hearing a judge actually agreed that the house shouldn't be classed as the location of a crime to the standard required to seize it. The act is however written in such a manner that the same judge was powerless to return the house, the homeowner and his family never got the property back and the amount of compensation received (as it was a civil matter) didn't come close to covering his mortgage (he still had to pay that) or legal fees. So case law and the legal system show that it's not easy at all to prove this and even if you do it doesn't mean you will get your property back, yet you expect us to believe it's in fact easy because of?

Does it appear less likely to be abused in Australia/UK than in the US? It has one extra step, so potentially yes, however what also became clear was that the requirements to record and report statistics on it in the UK and Australia are almost non-existent, and if as a tool it's being mainly used against marginal groups (and I suspect it is), then we may simply not be hearing about it to the same degree we do in the US.

You're at the point now where it's honestly coming across that you don't 'want' this to be true, rather than being able to present any actual reasoned reply.

 

[Scaff]

The anti-cancel culture right wants to cancel Rittenhouse whiskey for, checks notes, asking people not to use its product (which is unrelated to Rittenhouse) to celebrate Rittenhouse's acquittal.

Whiskey brand wants association with Kyle Rittenhouse to stop

Conservatives have been toasting Kyle Rittenhouse’s not guilty verdict with Rittenhouse Straight Rye whiskey - but now the brand has spoken out, slamming those using their product for this purpose.Kyle Rittenhouse fatally shot two people and wounded a third last year during a Black Lives Matter...

www.indy100.com