THE COMPATIBILITY OF UNEXPLAINED WEALTH PROVISIONS AND ‘CIVIL’ FORFEITURE REGIMES WITH KABLE

This paper considers the growing use of forfeiture regimes in Australian law to deal with suspected criminal offending. Increasingly, these regimes apply in the absence of a conviction against the person whose property is to be confiscated; indeed the person need not have been charged with any crime, and an actual acquittal on a charge is no bar to the proceedings being brought. These regimes include unexplained wealth provisions, which often contain a reverse onus of proof, requiring the person whose property is liable to be confiscated to prove the lawfulness by which they acquired property, rather than for the prosecutor to prove the truth of an allegation of criminality. These regimes raise the important question of where the true boundary is between proceedings that are 'criminal' in nature and proceedings that are 'civil' in nature, or whether the existing boundary lines no longer serve us well. In addition, I argue that by asking the court to make a confiscation order in the absence of any specific allegation of criminality or proof that a criminal offence has been committed, these regimes offend the Kable principle, by departing significantly from traditional judicial process, and imposing what is in essence 'punishment', a criminal response, to a proceeding that is dressed up as being 'civil' in nature.


INTRODUCTION
In recent years, 'civil' forfeiture regimes and unexplained wealth regimes have progressively been introduced in most Australian jurisdictions, as a response to suspicion that individuals are holding property acquired other than through lawful means. These supplement confiscation of proceeds of crime legislation, usually applied after a person has been convicted of an offence, and which apply to property acquired as a result of criminal activity proven beyond reasonable doubt. The more traditional proceeds of crime legislation raises little philosophical difficulty; it is hard to argue that a person convicted of a crime should keep the rewards of their criminal activity. More difficult is the idea that the property of a person can or should be confiscated based on a suspicion by authorities that the property was acquired other than through lawful means. This is what these regimes allow. In this article, I outline aspects of the civil forfeiture/unexplained wealth regimes operating in all jurisdictions in Australia bar one, before considering how such regimes could be legally challenged. I argue in this article * Professor Anthony Gray, Deputy Head, USQ Law School. Thanks to the anonymous referees for helpful comments on an earlier draft. that they are offensive to the Kable doctrine that has been developed in a series of decisions, by asking the court to act in a manner contrary to judicial process. This doctrine was applied in the forfeiture context in the International Finance Trust decision. These regimes clearly inflict 'punishment' and are submitted to be truly criminal in nature; the High Court has found that punishment can only be inflicted after a finding of guilt at the criminal standard. These regimes do not comply. 1 Given that these regimes blur the distinction between civil and criminal proceedings, 2 they reflect a broader debate regarding the ongoing utility of such a distinction, whether there should be recognised a 'third category' of proceedings that are properly neither civil nor criminal, and the essence of what is and should be considered to be a crime.
They also reflect a modern move towards preventative measures rather than dealing with behaviour after the event. Utilitarian views of criminal law compete with retributive theory. No doubt, the use of civil forfeiture measures reflect dissatisfaction with aspects of the traditional criminal justice system and the burdens it imposes on prosecutors. 3 Of course, we must be wary that the government does not seek to subvert the 'shackles' imposed by traditional criminal law due process by unjustified description of proceedings as civil in nature.

II
OUTLINE OF REGIMES I will deal briefly in this section with each regime. 4 Of course, there is much overlap between them, and this will be acknowledged. There are also important aspects that are a part of only one or two regimes, and these will also be considered. These Acts are complex, running to hundreds of sections in some cases. I have left out discussion of aspects of the Acts that are not considered relevant for present discussion purposes. 5 I will consider both so-called unexplained wealth provisions and civil forfeiture provisions separately, as most of the Acts do, though I recognise that there may well be overlap between these sets of provisions. One difference is that with respect to civil forfeiture provisions, the application will relate to specific property, and it is that property that will be the subject of any order made. In contrast, the result of an unexplained wealth order being made is that the person affected will be deemed to owe a financial amount to the government. Another is that the use of reverse onus provisions is to a large extent confined to the context of unexplained wealth provisions, rather than civil forfeiture proceedings.

A Unexplained Wealth Provisions
Section 179B of the Proceeds of Crime Act 2002 (Cth) allows the court to make a preliminary unexplained wealth order requiring a person to appear before it to decide whether or not to make an unexplained wealth order. It may do so if it is satisfied that an authorised officer has reasonable grounds to suspect that the person the subject of the application has wealth exceeding that which was lawfully acquired (unexplained wealth). 6 The application must include the reasons for the suspicions of the authorised officer. 7 If the court makes the preliminary unexplained wealth order, notice and details of the pending application for an unexplained wealth order will be given to the person the subject of the application. 8 The person will be required to attend at the proceeding for the final order. Section 179E then allows the court to make the final unexplained Tasmania's regime applies only following conviction for an offence, so will not be further considered in this article: see Crime (Confiscation of Profits) Act 1993 (Tas). 5 In particular, I have deliberately omitted specific reference in each of the Acts to the exact property that may be the subject of the application, hardship provisions, the fact that often a restraining and/or freezing order is sought at or near the same time as the forfeiture application etc and many other features, because they are not considered relevant to the argument I will make. Aspects of the New South Wales legislation that required the court to hear an application ex parte were recently adjudged to be constitutionally invalid in International Finance Trust Company Limited v New South Wales Crime Commission and Another (2009) 240 CLR 319 but that aspect of the laws is not the focus of this article. 6 Proceeds of Crime Act 2002 (Cth) s179B(1)(b). 7 Ibid s179B(2). 8 Ibid s179N. wealth order if satisfied 9 that the person's wealth was, at least in part, derived from a crime against a law of the Commonwealth, foreign law, or state law with a federal aspect. Section 179E(3) effects a reversal of the onus of proof, requiring that the person the subject of the application to prove that their property was, in effect, acquired by lawful means. 10 The court is not limited in making its application by the evidence presented by the applicant for the order. 11 There are provisions outlining how the unexplained amount is calculated; it includes property under the 'effective control' of a person, property that the person has disposed of or consumed, whether the property was acquired prior to the introduction of the law or not. 12 New South Wales, Western Australia, South Australia and the Northern Territory have similar regimes. In New South Wales and Victoria, the court must make such an order if there is a reasonable suspicion that the person affected has engaged in serious crime-related activity, or acquired property derived from serious crime-related activity. 13 In Western Australia, South Australia and the Northern Territory, the court must make the order if it is more likely than not that the person has unexplained wealth. 14 In these jurisdictions, the court's finding need not be based on reasonable suspicion as to the commission of a particular offence. 15 The Acts all contain a reverse onus provision, 16 requiring the court to assume that the allegations by the prosecutor regarding unexplained wealth are correct, unless the person affected shows, on the balance of probabilities, otherwise. The fact that any conviction of the person is quashed or set aside does 9 Ibid179E(1)(b); the provision is actually that the court is 'not satisfied that the person's wealth was not derived from at least one of these sources,' but for the sake of explaining the provision as simply as possible, I have removed the double negative, while acknowledging later the evidentiary point. 10 'Lawful means' here is taken to refer to means other than commission of an offence against (a) Commonwealth law, (b) foreign law, or (c) an Australian State law with a federal aspect. 11 Proceeds of Crime Act 2002 (Cth) s179E(4). 12 Ibid s179G; the New South Wales regime is also retrospective (Criminal Assets Recovery Act 1990 s28A(5)). 13 Criminal Assets Recovery Act 1990 (NSW) s28A(2). To be clear, it is not necessary that the person whose property is seized is the one who is suspected or proven to have committed the crime (Criminal Property Confiscation Act 2000 (WA) s148 (1) (11)). Section 83 of the Qld Act (Criminal Proceeds Confiscation Act 2002) also contains a reverse onus provision, but this is in the context of a 'proceeds assessment order' rather than unexplained wealth so-called.
not affect the validity of the forfeiture order. 17 Sometimes, rules of evidence are relaxed in relation to these proceedings. 18

B General Civil Forfeiture
The Commonwealth Act also contains provision for forfeiture of property the court believes (civil standard) to be the proceeds of an indictable offence, or the instrument of such an offence. 19 The civil standard also applies in New South Wales, 20 Victoria, 21 Queensland, 22 South Australia, 23 Western Australia, 24 the Northern Territory, 25 and the Australian Capital Territory. 26 The court need not find that the person whose property is to be forfeited committed a specific offence, 27 or indeed any offence. 28 It is (generally) enough that there is reasonable suspicion that someone committed an offence, and the property is the proceeds or instrument of such an offence. Generally a reverse onus is not applied to these proceedings; however if the proceeds related to a terrorism offence and the property was in the person's possession at the time of the possible offence, then a reverse onus applies, and the person must show the property was Exceptionally, the Victorian Act, which allows for civil forfeiture generally but not unexplained wealth forfeiture, maintains that the rules of evidence generally are applicable to the proceedings (Confiscation Act 1997 (Vic) s33(4)), as does the South Australian Act (Serious and Organised Crime (Unexplained Wealth) Act 2009 s41(d)). 19 Proceeds of Crime Act 2002 (Cth) s49(1), provided a restraining order has been in place with respect to the property for at least six months prior to the application being made. 20 Criminal Assets Recovery Act 1990 (NSW) s22(2) and s27(2), requiring a court to make the forfeiture order is it is 'more probable than not' that the person was engaged in, or has proceeds derived from, serious crime related activity involving an indictable quantity or serious crime related activity involving an offence punishable by at least five years' imprisonment; see also Criminal Assets Recovery Act 1990 (NSW) s27(2) and (2A). 21 Confiscation Act 1997 (Vic) s16(2)(a) (reasonable suspicion is sufficient: Confiscation Act 1997 (Vic) s18(2)(b)). 22 Criminal Proceeds Confiscation Act 2002 (Qld) s58(1), requiring the court to make an order if it is 'more probable than not' that the person whose property is to be forfeited was engaged in serious crime-related activities, or the property the subject of the application was suspected of being derived from serious crime, regardless of who might have committed that crime (if it is, in fact, crime-derived); see also Criminal Proceeds Confiscation Act 2002 (Qld) s8. Section 9 of the Criminal Proceeds Confiscation Act 2002 (Qld) states that any order made under the Act is not a punishment or sentence for any offence. not used in connection with the commission of the offence. 29 Any forfeiture in these cases is not affected by the acquittal of the person or by the quashing of any subsequent conviction. 30 Sometimes, it is specifically provided that the raising of a doubt regarding whether criminal activity actually occurred is not sufficient to prevent the court making the order. 31 There is a presumption (except in the ACT) that if the property was in the person's possession at the time of any offence, that it was used in connection with the offence, unless the person adduces evidence to the contrary. 32 In some jurisdictions, interim proceedings such as freezing orders, as well as the application for civil forfeiture itself, 33 can be heard in closed court. 34 III PROBLEMATIC ASPECTS OF THESE REGIMES I will how discuss in more detail what I consider to be the more problematic aspects of these regimes.

A Assertion that these Proceedings are Civil in Nature
There is an assertion in each of these Acts that the proceedings are civil in nature. This is explained by the fact that in each case, the standard of proof is at the civil standard or near it, requiring that matters be proven on the balance of probabilities or based on reasonable suspicion. This matter requires further investigation; I do not accept the positivistic line that proceedings are, in fact, civil in nature merely because the legislature states that they are civil in nature. In my view, one must consider the substance of the proceedings, and if the substance of the proceedings is criminal in nature, difficulties arise when the civil standard is applied.
There is much support for my position that the court should be prepared to look beyond the form of the legislation and consider the substance. Much of this support appears in the constitutional law jurisprudence. One could look at the case law on how legislation should be characterised; 35  jurisprudence on s90 36 or s92 37 or s55, 38 to see the debate between form and substance. In the recent International Finance Trust decision, in the specific context of forfeiture proceedings, there is an express reference to considering the legislation 'in substance'. 39 In all cases, substance has eventually won the day, as it should.
Perhaps the jurisprudence that is most relevant here, however, has involved controversial legislation that allowed a person to be further incarcerated, beyond their originally given term of imprisonment, if a court was satisfied, on the civil standard, that the person was going to re-offend. 40  character or punitive effect. 44 He was aware of possible consequences if the law were otherwise: Normally, a law providing for the deprivation of the liberty of an individual will be classified as punitive. As a safeguard against expansion of forms of administrative detention without court orders, our legal system has been at pains to insist that detention in custody must ordinarily be treated as penal or punitive; precisely because only the judiciary is authorised to adjudge and punish criminal guilt.
Where it otherwise, it would be a simple matter to provide by law for various forms of administrative detention, to call such detention something other than 'punishment', and thereby to avoid the constitutional protection of independent judicial assessment before such deprivation is rendered lawful. 45 Bearing in mind then that we need to look beyond appearances to the substance of the legislation, the next question is whether confiscation of the property of an individual because of its (possible) connections to criminal activity, as the legislation discussed above contemplates is, in substance, a criminal process or, in substance, a civil process.

B The Nature of a Criminal Process and a Civil Process
If the answer does not necessarily depend on how parliament has characterised the proceedings, how does one recognise processes as being essentially criminal in nature? Some guidance can be found in case law and academic writing. This issue has been considered at some length by courts and academics, particularly overseas. Given the critical importance of this issue for present purposes, extended discussion is justified. I will refer to what the case law in North America and Europe has shown us in terms of the civil/criminal divide, before applying this learning to the Australian regimes.
The United States Supreme Court nominated several factors (the Mendoza factors) to assist in determining whether proceedings are in fact criminal or civil in nature: (a) whether the sanction involves an affirmative disability or restraint; (b) whether it has historically been regarded as punishment; (c) whether it comes into play only on a finding of scienter; (d) whether its operation will promote the traditional aims of punishment, such as retribution and deterrence; (e) whether the behaviour to which it applies is already a crime; (f) whether an alternative purpose to which it may rationally be connected is assignable to it; preventing further illicit use of the (thing seized) and by imposing an economic penalty.' 48 In Boyd v United States, the Court was adamant: Proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offenses committed by him, though they may be civil in form, are in their nature criminal. 49 To the extent that history is relevant (in terms of (b) above), there is an extensive history of forfeiture in the common law. Forfeitures that occurred without a conviction included the deodand and forfeiture in rem, often of a ship. 50 A deodand was a thing that caused the death of a person. It was liable to be forfeited to the Crown. At this time common law damages were not available to family members of a victim of an accidental death; the deodand claim was in effect a substitute.
A fiction was applied that the deodand itself was the wrongdoer. The proceeding was against the deodand itself, rather than the owner of the thing. 51 These proceedings took place in a criminal court, 52 and had punishment overtones. 53 Other factors that have often been considered include: (a) Stigma: the stigma associated with criminal proceedings as being one of its hallmarks, and the stigma associated with asset forfeiture, suggestive to other members of society that the person whose property is forfeited was involved in some kind of wrongdoing. 54 (b) Enforcement of a law by the government, rather than a private individual, is usually seen to be a sign of a penal law, as opposed to a civil law.  In Europe a three factor test (Engels factors) has been accepted, involving consideration of (a) the classification of the proceedings in domestic law (as a starting point only), (b) the nature of the conduct; and (c) the nature and degree of severity of the penalty that the person concerned risked incurring. 57 In terms of (a), there are precedents where, although the parliament claimed that the proceedings were of a civil nature, the court found that in substance the proceedings were criminal in nature, for the purposes of the application of the European Convention on Human Rights. 58 Relevant factors in relation to (b) include whether the provision applies broadly or by its nature to a small group 59 and whether the conduct is typically viewed by members of society as reprehensible; 60 relevant factors in relation to (c) include whether the penalty is substantial and fixed; 61 and whether it is imposed to punish as well as to deter. 62 In terms of (c), the fact the only penalty is a financial one does not preclude a finding that the provision is punitive in nature. 63 Courts in the United States and Europe have considered the purpose of the legislation. If the legislation serves a remedial purpose (only), it is more likely to be truly civil in character. However, where it truly serves retributive or deterrent purposes, it is more likely to be seen as criminal in nature. 64 An important consideration here is whether the fine imposed (or confiscation of property) is done with the intended purpose of Welch v United Kingdom (1995) 20 EHRR 247 (this was an assets forfeiture case, but a difference was that imprisonment was also an option for default). 57  returning it to its rightful owner. The absence of a clear purpose to do this suggests that the law is attempting to punish a wrongdoer, giving it criminal overtones, regardless of its claimed status. 65 Sometimes a Government has argued that the laws were passed for a preventative, rather than punitive purpose. 66 The water is somewhat muddy here, given that both criminal and civil remedies can have a purpose of 'deterrence', and that punitive laws can often have preventive purposes, among other purposes.
Given that Australia obviously shares a common law tradition with the United Kingdom and the United States, there is no reason in my mind to doubt the usefulness of the above discussion in terms of considering in Australia whether proceedings are truly criminal or civil in nature. These are submitted to be principles of universal application. 67 How do these principles apply in the Australian context?
Given that the purpose of the legislation is seen as critical in deciding the true nature of the proceedings, let us now examine some Australian decisions that have considered the purpose of legislation containing forfeiture provisions. Comments in several Australian cases suggest that the forfeiture provisions considered there were 'penalties'. 68 This arose squarely for the decision in Lawler, for instance, in the context of a constitutional challenge to a forfeiture on the basis that it breached the requirements of s51(31) of the Constitution, the just terms provision, and was not within a head of power. 69  not subject to the just terms requirement, 70 and that the imposition of a penalty to enforce a law was incidental to the fisheries power, s51(10). 71 In Lawler, Brennan J states expressly that the 'forfeiture of property is a penalty exacted because the property was used in committing a breach of the law.' 72 Deane and Gaudron JJ speak of a law 'imposing a fine or penalty, including by way of forfeiture.' 73 Dawson J expressly stated that the forfeiture there was a penalty, 74 in terms with which Toohey J agreed. 75 McHugh J acknowledged that a penalty might include forfeiture, and spoke to the deterrent effect of such action. 76 The earlier High Court decision of Cheatley v The Queen 77 contains similar sentiments. The specific issue there was a statutory interpretation question of whether a forfeiture order could be made even though the owner of the thing had not been shown to have committed an offence. 78 The master of the boat had been convicted of a breach of fisheries legislation. That legislation provided, as one option following such a conviction, that the boat could be forfeited. The owner of the boat challenged this process, arguing he had not been convicted of any offence. 79 This case is of particular interest in the current discussion, given that the Acts in question here similarly provide that the person whose property is being forfeited under the legislation need not have been shown to have committed any offence, or to even have been charged with an offence. Any acquittal or overturning of a conviction of such a person is similarly stated to be irrelevant.
A majority of the Court found that the forfeiture of the boat against the owner was valid, although the owner had not been shown to have committed an offence. 80 In so doing, members of the court addressed the question of whether the forfeiture provisions were punitive in nature. Several comments indicate that they thought they were. McTiernan J, for instance, concluded that 'even though the convicted person was not the owner of the boat in question, the forfeiture of it to the Crown in right of the Commonwealth was punishment of that person.' 81 Mason J noted that historically forfeiture had been regarded as punishment for an offence, 82  concluded that 'forfeiture is a penalty or consequence which attends, on some occasions at least, the illegal use or possession of goods.' 83 Lord Atkin in Proprietary Articles Trade Association v Attorney-General (Canada) stated that in determining whether an act was criminal or not, the question was whether the act was prohibited with 'penal consequences'. 84 Put together, these decisions suggest that forfeiture proceedings are truly criminal in nature.
In the recent High Court decision International Finance Trust Co Ltd v New South Wales Crime Commission, 85 French CJ in dicta also suggested criminal law-type purposes behind 'civil' forfeiture provisions. He referred to the history forfeiture in other jurisdictions in concluding: The preceding history is mentioned by way of acknowledgement of the widespread acceptance by governments around the world and within Australia of the utility of civil assets forfeiture laws as a means of deterring serious criminal activity (emphasis added). 86 It is trite law to observe, of course, that deterrence and punishment are typically prime objectives of criminal processes. 87 In considering the acts in question in this article, not all of them expressly declare a purpose. All of the civil forfeiture regimes discussed here are found in legislation with 'crime' in the title. 88 The issue is complicated by the fact that the acts discussed contain both clearly criminal forfeiture provisions (in terms of forfeiture of property following a person's conviction of crime in some way relating to that property), and so-called 'civil' forfeiture provisions, in terms of assessing the objectives of the Act. Having said that, the objectives of the Australian Capital Territory Act include to 'deprive a person of all material advantage derived from commission of an offence,' clearly very similar to deterrence, as is a reference to seeking to prevent the person affected from using the property to commit other offences. 89 The Victorian Act contains an express reference to the object of 'deter(ring) persons from engaging in criminal behaviour.' 90 Deterrence is also alluded to in the Queensland Act, which expressly seeks to remove the financial gain associated with illegal activity. 91 Section 5(a) of the Proceeds of Crime Act 2002 (Cth), including the unexplained wealth provisions, refers expressly to punishment and deterrence. 92 In terms of the specific bill introducing the unexplained wealth provisions, then Attorney-General McClelland spoke of their object as including to 'remove the incentive for criminals to engage in organised criminal activity.' 93 We have seen that labelling something to be civil is of little importance in deciding whether proceedings are truly criminal in nature. In terms of the Mendoza factors mentioned earlier, these proceedings do involve affirmative disability in the way of property confiscation. I have indicated that historically there is reference to these types of proceedings as being criminal in nature. Forfeiture does promote traditional aims of punishment like retribution and deterrence. The behaviour to which the acts are directed, whether the person who owns the property is thought to have committed a crime themselves or is an accessory to a crime, or has received stolen property etc, is in many cases criminal anyway. On the other hand, scienter is not required in order that the forfeiture order can be made.
On balance, most of the Mendoza factors indicate the proceedings are truly criminal in nature. 94 In terms of the list of three factors mentioned above, one would have thought that forfeiture of one's property after a government-initiated proceeding in court would attract significant stigma to the person whose property was forfeited. The proceedings may well be heard in open court, and many who heard of the proceedings would assume the person whose property was forfeited was guilty of a crime. Further, in relation to (b) it is the government bringing the proceedings, not a private individual, and regarding (c), there are statutory assumptions in these provisions, as indicated, that are favourable to the government.
In terms of the Engels factors discussed above, the civil label is of marginal relevance as we have seen. On the nature of the conduct (b), proceedings can be taken against anyone in society, rather than being only applied to a specified category of persons. The conduct, allegedly the ownership of ill-gotten gains, would be seen as reprehensible by anyone who knew about it, and people would readily infer the guilt of the person whose property was forfeited, even in the absence of any conviction. In terms of (c), the penalty may well be substantial, and is fixed in terms of equalling the amount not proven to have been lawfully acquired. I have discussed above the purpose of the forfeiture as including purposes typically associated with the criminal law, including punishment, and note that there is nothing in the legislation which indicates an intention to seek to restore the property forfeited under this legislation to its rightful owner. This also suggests its non-civil nature.

C Conclusion -Forfeiture Provisions Are In Fact Criminal in Nature
My conclusion, having applied the principles derived from North America and Europe, and having considered relevant High Court of Australia decisions regarding forfeiture proceedings, is that such proceedings are in fact criminal in nature. I am not alone in reaching this conclusion; academic leaders in this field have made the same observation: Non-criminal proceedings should not be used to circumvent the criminal trial if the outcome can be a significant penalty, especially (but not exclusively) if it may entail loss of liberty. 95 Civil forfeiture as generally practised today by the federal government is in fact punishment and thus cannot be imposed separately from and in addition to criminal punishment. 96 The difficulty in Australia with this conclusion, however, is that there is no express human rights instrument which can be utilised to strike out such provisions. 97 However, I believe there are some constitutional principles which can be utilised to resolve this issue, to which my concluding observations now turn.

IV HOW CAN THE AUSTRALIAN CONSTITUTION BE UTILISED HERE?
The High Court was confronted in Kable v Director of Public Prosecutions (NSW) 98 with legislation that bore some similarity, as well as substantial difference, to the civil forfeiture regimes considered here. The similarities involved a proceeding that might lead to what all judges would consider to be punishment (in that case, imprisonment rather than mere forfeiture of property), where the court was directed that the proceedings were to be considered to be civil in nature, with the balance of probabilities being applied, and ordinary rules of evidence being relaxed. 99 95 99 Another difference between the law in Kable and that considered here was that in Kable the court was asked to make an assessment, on the balance of probabilities, of whether a specific named person would be more likely than not to re-offend, if released, whereas the civil forfeiture regimes considered here ask the court to make an assessment, generally on the balance of probabilities, of whether the person the subject of the proceedings has property A majority of the Court found the legislation to be constitutionally invalid, 100 and some of their comments are considered to be directly relevant here, albeit in a different context. Toohey J, for instance, concluded that the legislation was invalid as being offensive to the principle of separation of powers, because the law 'required the Supreme Court to participate in the making of a preventive detention order where no breach of the criminal law is alleged and where there is no determination of guilt.' 101 Gaudron J stated that a central purpose of the judicial process was to 'ensure that punishment is not inflicted and rights are not interfered with other than in consequence of the fair and impartial application of the relevant law to facts which have been properly ascertained.' 102 She was not satisfied this law met the test, given that it required a finding on the civil standard of proof that someone was likely to re-offend, when the ordinary rules of evidence had been dispensed with. 103 McHugh J noted that the law dispensed with the ordinary protections inherent in the judicial process by providing for punishment, but removing the need to prove guilt beyond reasonable doubt and by discarding rules of evidence. 104 Perhaps most relevant of all here were the comments of Gummow J: The Act requires the Supreme Court to inflict punishment without any anterior finding of criminal guilt by application of the law to past events, being the facts as found. Such an activity is said to be repugnant to judicial process. I agree. 105 These comments are equally applicable to the civil forfeiture provisions discussed in this article. I have shown that forfeiture provisions do inflict punishment -Gaudron J required that in such cases fair processes be used, and did not agree it was constitutional in such a context to use the civil standard and to discard rules of evidence. Yet this is what the civil forfeiture provisions do. Toohey J did not agree with the court being asked to inflict punishment where no breach of the criminal law was alleged and where there was no determination of guilt. 106 As indicated, the civil forfeiture regimes operate independently of any finding of guilt. It is not necessary that the person affected even be charged with anything; their acquittal or the overturning of a conviction against them is stated by the legislation to be irrelevant. 107 Gummow J stated expressly that inflicting punishment without any finding of criminal guilty is repugnant to judicial process; that is what the civil forfeiture provisions do. 108 These comments can be applied to the current context. For instance, if Toohey and Gummow JJ were troubled in Kable by punishment being inflicted without breach of the criminal law being proven, 109 they would presumably be troubled with unexplained wealth legislation, imposing the 'punishment' of taking a person's wealth or property away when no specific allegation of wrongdoing need be made, let alone proven beyond reasonable doubt.
Gummow and Bell JJ expressed consistent views in the recent International Finance Trust decision. 110 The civil forfeiture regime in the Act in question, including the reverse onus provision and civil standard of proof, clearly troubled them. 111 Though the decision related to the freezing provisions of the Act and the ex parte nature of the proceedings rather than the actual forfeiture, their comments are considered very relevant here. Gummow and Bell JJ concluded in the case: The Supreme Court is conscripted for a process which requires in substance the mandatory ex parte sequestration of property upon suspicion of wrongdoing, for an indeterminate period, with no effective curial enforcement of the duty of full disclosure on ex parte applications. In addition the possibility of release from that sequestration is conditioned upon proof of a negative proposition of considerable legal and factual complexity. Section 10 engages the Supreme Court in activity which is repugnant in a fundamental degree to the judicial process as understood and conducted throughout Australia. 112 As can be seen, Gummow and Bell JJ declared the legislation invalid in International Finance Trust because it offended the Kable principle by asking the court to act in a non-judicial manner. Partly, this was because the person affected was required to 'pro(ve) .. a negative proposition', 113 in other words, the lawfulness by which they obtained property. Gummow and Bell JJ thought that such a requirement was antithetical to traditional judicial process, such that it infringed the Kable principle and the separation of powers for which the Constitution provides. It is argued here similarly that the unexplained wealth provisions in other Acts, by reversing the onus of proof, require the court to act in ways that are offensive to the Kable doctrine.

V CONCLUSION
Recent years have seen a move towards asset confiscation not connected with the proven commission of a criminal offence. The introduction of unexplained wealth provisions is the latest example. These trends reflect government dissatisfaction with traditional criminal justice processes, including presumption 109  of innocence and the high criminal standard of proof. However, it is not acceptable to change the goal posts because it makes things difficult for the government. The criminal standard of proof is robust for very good reasons, including the stigma associated with suspected criminal activity, and the usually serious consequences that result from criminal behaviour. The court must stand firm and not allow the government to define proceedings so that they are most convenient for the government to collect revenue, casting aside fundamental due process along the way. The courts must consider the issue of whether proceedings are criminal or civil in substance, not form. In substance, according to the tests given by the North American and European courts, and according to the High Court of Australia's express observations of forfeiture proceedings, these proceedings must be seen as truly criminal in nature, despite the label. This means that the criminal standard of proof must apply. Although the Australian courts do not have an express bill of rights at their disposal to justify striking down legislation that dresses up what is actually criminal as civil proceedings, there are other methods at their disposal. Primarily, the court could (and should) use Kable reasoning to stand firm against legislation with a punishment objective but which does away with the need for the prosecution to prove guilt to a criminal standard. The reasoning in Kable itself, as well as the specific forfeiture case International Finance Trust, can be used to attack these regimes.