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Opinion: WA’s asset seizure laws have missed the target and need to change with the times

Back in April 2002 then State attorney-general Jim McGinty and director of public prosecutions Robert Cock gleefully posed on the front page of this newspaper astride a motorcycle to celebrate the first seizure of a Harley-Davidson from a convicted drug trafficker.

At the time, Perth’s violent bikie wars were in full flight and both Labor and the Liberals were falling over themselves to boast they were toughest on crime.

The $20,000 bike had been seized under the new Criminal Property Confiscation Act, which had come into force the previous year.

They weren’t really Labor’s laws, but the ALP had backed them in all the same. They had actually been cooked up by the Court government ahead of the 2001 election. But Geoff Gallop had watched from afar as his old Oxford University chum Tony Blair made huge political gains with his cut-through slogan “tough on crime, tough on the causes of crime” and took his lead.

WA Labor won the 2001 poll in an historic landslide and adopted the laws as its own.

WA’s confiscation Act falls over a handful of scenarios where the State can seize property from an individual.

The section of the Act most often in the headlines these days is the drug component, where a person caught with a certain amount of drugs — 20 cannabis plants or 28g of a substance such as methamphetamine or MDMA — is declared a trafficker, allowing cops to slap a freezing order on homes or any other assets and begin taking them.

The individual does not need to be convicted to be hit with a freeze order. They can be issued a property seizure notice as soon as they are charged.

WA’s confiscation laws are civil — not criminal — effectively gifting the plod a much lower burden of proof.

Unlike the criminal law, confiscation orders also reverse the onus of proof, leaving it up to the individual to fight to show they’ve done nothing wrong.

At the time of introduction, confiscation laws were billed as targeting the “Mr Bigs” of crime — bikies, serious organised crime and dealers flashing wealth about town.

But to date, the top crime targets have for the most part gone untouched. Most of the big fish have proved too smart to get caught. Instead, WA’s courts have seen a steadily growing stream of small-time dealers and the unwitting family members of declared traffickers swept up in the net.

The Weekend West reported at the weekend how eminent barrister and former governor Malcolm McCusker had thrown his support behind the case of Vietnamese immigrant Tam Nguyen, who faces losing her home because of her former husband’s crimes.

Mrs Nguyen, who speaks little English and works for the minimum wage in a chicken factory, says her husband Phi Van Tran had left her and stopped contributing to the mortgage on their Girrawheen home in 2010 — two years before he and his new partner were arrested for heroin and meth dealing.

Mrs Nguyen had no involvement in her husband’s crimes, but the Office of the Director of Public Prosecutions has said it will seize Van Tran’s interest in the house, amounting to 50 per cent.

She will have to sell the property to meet the demand.

Last year The West Australian court reporter Tim Clarke covered the case of 76-year-old mother Miriam Down, who almost lost her Wembley home after being convicted for growing a handful of cannabis plants to treat her son’s mental illness.

Lawyers working in this area say they are swamped with similar cases, where wives and children face the loss of their property for the crime of a husband or son. It’s hard to see how this is the intended purpose of the Act as it was originally conceived —punishing families and innocent third parties, perhaps driving more kids to a life of crime.

Most States have confiscation laws, but WA is one of the few jurisdictions to deny judges any ability to make a hardship call to strike out the order.

Attorney-General John Quigley says he is considering a “comprehensive” review of the laws, but is yet to say how that might take shape.

There’s also no word on whether that review would take in the more terrifying aspect of the Act — the so called “crime used” property substitution component — which in theory allows the DPP to levy a financial penalty against an individual to the value of the land on which a crime was committed.

As has been argued in WA courts, that could see someone who has committed a crime in Kings Park hit with a demand for funds equal to the value of the Botanic Gardens. Again, there is no need for a conviction.

And serious questions need to be asked about the component of the Act which grants the DPP and police bonus payments for hitting targets in seizures — ensuring the laws are used often and widely.

On that same day 16 years ago that this paper published that photo of McGinty and Cock on a motorcycle, it also ran a front-page story about the rise in use of a then little-known drug called ice.

The story reported that before November 2000, police had never encountered meth in WA, but seizures were growing.

The arrival of meth changed everything in WA’s criminal justice system, swamping the courts, police and health services.

Our laws need to change with the times, too.

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