Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 11 February 2015.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:16): I speak on the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill 2015, and I picture the Attorney-General being a bit like that Monty Python skit where he has come out with a sword, having a fight, and he loses one arm, then the other arm, then one leg and then the other leg. It is incredible. I will give him this: three times he has been to the house with his bill, as original, without any amendment, and he still keeps coming back. He is bloodied, he has been beaten up, it is only a flesh wound, but he is fighting on. I will give him that.

This is the third time the government has come to us with a bill which has its origins in a promise they made in the 2010 election—admittedly before the Attorney was the Attorney, but shortly after that he became the Attorney—at a time when the then premier, the Hon. Mike Rann, had made a promise to do a number of things in respect of confiscating assets for very serious drug offenders where there had been a serious offence or multiple offences over a 10-year period. He said to the people of South Australia, 'I am going to take all the property of these people, and what's more, I am going to make sure they can't own anything for five years.' That was the promise.

We have raised in this house before the fact that, when they came into the parliament with this, they followed through on No. 1 and completely abandoned No. 2. The idea that, as they told the people of South Australia, they were going to be so tough on these people that they were going to stop them having assets for five years completely evaporated. That idea obviously disappeared, and so did the premier, of course, not that long after.

In any event, we raised at the time (that is, the opposition and in particular the Hon. Stephen Wade on our behalf) a number of concerns about the constitutionality of the bill as it was (this bill in its first form) and whether that was going to offend the Kable principle. Essentially, that issue resolved over a period of time because, although we felt the government was jumping the gun a bit, High Court decisions which have occurred since that time sorted out that issue and it was no longer a problem.

We have had a long history in the 12 or 13 years that I have been here (as long as the member for Heysen) of the government jumping the gun on some of these things, going off to the High Court, getting smacked around on it, and sent back. We have spent a whole lot of time and money, and embarrassment in the bikie legislation, for example, where alleged organised criminals just made the South Australian parliament, in particular the government, a laughing stock over some of the legislation that they pushed through. The government had form in this regard, and we were concerned that we have some authority to deal with these things and get it right before we are embarrassed by the situation again.

The other thing that concerned us, through the course of the incubation period of this idea and its initial argument, was whether there was some inherent fairness in aiming to confiscate assets of drug offenders essentially to the brink of bankruptcy, even if it was able to be proved that these people had legitimately acquired the assets and, of course, our concern for the impact on others that might jointly own or have some other interest in property. On balance, we could see that there was some merit in a very narrow group of people, the serious bad guys, to lose the right to have their assets in those circumstances. So, we supported the government essentially in relation to that principle.

The third thing is that my understanding of the confiscation law that we already have, which was fairly penetrating and which already raises some millions of dollars a year in assets that are confiscated, is that frequently in these cases a notice goes out and a fair bit of research is made about the fact that not only are assets owned and in the possession of these parties but that in every likelihood they are not likely to defend them; in fact, most often, they do not turn up to defend them and they let them go.

One could say that is because they do not have any legitimate basis upon which to satisfy any court that they should not be confiscated, and they walk away. It may be that some of them just do not like the inside of courtrooms, for other reasons, and they are not about to rush back there to try to present arguments. When the processes for the current confiscation law occurs, often there is no defence made or attempt to claw back or recover those assets, especially where there has been a conviction.

In the current processes, the proceeds go to the Victims of Crime Fund. This is a fund under our victims of crime law, which is designed to be available for a number of purposes, but the most significant I think and the most important is to ensure that victims of crime are able to claim some compensation from this fund without having to go through the ordeal of seeking money under a civil claim against the offender.

Sometimes the offender is unknown. More often than not, the offender is known, but they are not a person of means who is easily able to be identified, so the victims of crime have a fund from which they can seek some compensation. It has limitations on the amount you can have and on the circumstances; for example, it is a victims of crime fund which is not available for property damage—we are talking about personal injury here—and so on.

That is the way it currently works. We said that it is very important to us, if the government is going to move to this next level and it is justified in these extremely limited cases, that whatever money it gets ought to go into the victims of crime fund. That has really been our position throughout.

The other thing that is a little more unique in relation to this legislation is that it was going to be managed and applied as a decision of the Director of Public Prosecutions (DPP). The person in that position would have the responsibility to declare whether there would be an issue of a confiscation made against this group of major drug trafficking offenders. This is one of the issues, of course, that relates to whether this is an administrative or a judicial role and whether the DPP is the appropriate person to do that.

We said about that aspect of the legislation that we accept that the DPP could have this role. We think it is reasonable that they have a published set of guidelines about when they would apply it, just as they have a KPI and a standard as to how they make determinations about whether a case is prosecuted or not. They have prosecutorial guidelines. Similarly, in this area we should have a set of guidelines, bearing in mind, as I am sure most members would appreciate, that the Director of Public Prosecutions is a person, and Adam Kimber QC is the current DPP for South Australia. He has a department under him in which there are a number of prosecutors. They all work on files, depending on how senior they are, for all the prosecutions within their jurisdiction. Alongside that the police have a role in relation to prosecutions in this state, but I think it is fair to say that the DPP deals with the serious end of matters in the sense of ultimate penalty, and these are defined in the major indictables, etc.

The DPP himself has a role which is designed to keep independent from any government or potential executive interference the whole question of who should be prosecuted. It works pretty well. We previously had a different structure where that was not a totally independent process, with legislation giving it that protection of independence, and I think largely it works pretty well. However, in the discussion of this debate we made it pretty clear that we felt, if we are going to give the DPP this role and we are going to do it in a manner which has a set of guidelines to go with it, at the very least we should have the opportunity of a review process—some form of judicial review.

I think the Attorney would agree that we met with the DPP and other representatives of the government to try to work out what would be the best structural review process that would be acceptable. We understand that, whilst the DPP was not privy to or responsible in any way for the policy in this matter—that is obviously a government decision—he had been consulted about process and we were happy to look at that aspect as well. As reasonably as could have occurred, we came up with a formula of review which would be workable from the DPP's point of view, and would be appropriate, after discussions with the Commissioner of Police. It may have been a deputy commissioner but, in any event, it was at a high level of the police department. I think overall there was a pretty fair compromise.

After the second swing of this into the Legislative Council, and obviously other parties and Independents in the other place put their priorities on the table, it filtered down to really four key areas of difference about how we might progress this matter—catch the bad guys, its narrow application, and we have an administrative process to determine it—but here are the key points for us.

Firstly, there had to be some form of judicial review against any DPP direction, and that had to be in the narrow circumstances of there having to be an interest to justice to do so. The second was to require that the DPP publish confiscation guidelines similar to the prosecutorial guidelines that I have referred to. The third was that the proceeds not go into the Treasurer's/government's general revenue fund but that they be applied—as currently applies to victims of crime fund, moneys already taken under confiscation orders—into that victims of crime fund.

We were agreeable to, and we canvassed this as an opposition in the other place, half those proceeds being paid into a drug rehabilitation fund. This was particularly important to the Hon. John Darley. He had put forward a number of areas of improvement that he felt were important, including that there be money paid into a drug rehabilitation fund. After all, it is these drug trafficking people who needed to be punished and we ought to be looking at the victims and how we might deal with the rehabilitation of those who, frankly, are the real legacy, the real victims of drug sales—and, largely, that is our children. Sometimes they are older children obviously but, at the end of the day, drug addicts, whether they are 15 or 50, have parents and they, of course, are very concerned about this ever increasing and escalating problem.

The fourth area was that we needed some kind of review and reporting because it is a groundbreaking area. A couple of other jurisdictions, Western Australia and the Northern Territory, have considered it and are applying it. We feel that it needs to have a reporting process to the parliament. There are plenty of other situations where we have a one-page or sometimes a one-paragraph report—for example, surveillance operations of covert police operations—raw data that comes into us in an annual report from the DPP. He has to report to the parliament, so it would be logical, as he is the officer in charge of the directions under this, that it be in his report and that that should occur with his annual report. The other review process was that we look at this legislation again at a three-year expiation.

Other members in the other place also were more comfortable with allowing this type of legislation to progress for all the reasons the government has advanced but with those protections. That is and remains the view of the opposition—that, although there is some meritorious aspect of actually advancing this penalty to this very narrow group, it should be done strictly within that envelope. It is extremely disappointing that there has been no movement, not one little comma of movement, from the government to allow this to occur.

The other thing that has occurred since I last spoke on this matter, and I bring this to the attention of the house, is that I have learned that the outpatient drug and alcohol services at the Glenside site of the Royal Adelaide Hospital, which is now a campus of the Royal Adelaide Hospital, does not even exist.

Members might remember that it was proposed by minister Gago, then minister for mental health, four or five years ago, that when they rebuilt the Glenside hospital on Fullarton Road there would be inpatient drug and alcohol services. This was part of the government's new model of care, as being up to date, world class, blah, blah, blah.

It went through a select committee which said some of that was a nonsense, but on this aspect we agreed with them—to the extent of saying that the co-location of drug and alcohol services with mental health services, given the high comorbidity of people who often needed these services, was actually a sensible thing. We needed to have specialist drug and alcohol services there to assist with a number of patients who also had mental health requirements.

The government announced that they were going to sell their three sites at Norwood, Joslin and, I think, North Adelaide, and that they would relocate those to Glenside. So, some in-house services came into the new mini hospital, which is now being built at the back of the Glenside site. But they either forgot about, did not do, or ran out of money to deal with the provision for outpatients for drug and alcohol services. In fact, they then tried to negotiate with a company which had an option on the property to do a retail and commercial development on Fullarton Road, and they were given a first option in relation to that.

The government then attempted to negotiate with them to build it when they built their supermarket and then lease it back to the government. That fell in a heap. That is no longer progressing, and of course we now know the government is going to sell it all off for prestige housing with a tiny lick of affordable housing in it. They will be mini houses because, given the value of property there, that will be a room on top of a garage.

Nevertheless, for obvious reasons, not only has it not been provided, but the government have no intention of providing it. Renewal SA, which has the charter and instruction to get on and provide the housing on that site, will hardly want to have an outpatient drug and alcohol service, with people coming in day and night down the driveways of prestige homes the government wants to sell at a premium price. It is hardly surprising that they are not about to do that.

Here is the problem: it is a statewide amenity to provide for drug and alcohol services. It has been diminished. There is still a service that is available at Norwood, in the Warinilla facility, but there is no provision of service of outpatients at the Glenside site. We do not have anything there, and we have no commitment from the government for any extra drug and alcohol services to deal with the current demand and the expected demand.

I am very sympathetic to the Hon. John Darley's motion—and our side of the house has expressed this—that at least half these moneys should go into a drug rehabilitation fund. It is almost unconscionable that we would be saying, 'These are the pointy end of the pencil of bad drug dealers and we're not going to apply any of this money to drug rehabilitation,' in an environment where there has been a slash and burn of drug services.

I am very concerned about that, and I know the Hon. John Darley is too, and I think it is unconscionable of the government not to accommodate this windfall of money that they expect to get from this legislation into that fund. The rest of it, at least, should go into the victims of crime fund. We have been consistent from day one in saying that that should not be going into general revenue.

Another aspect of this that I think is important to bring to the attention of the house is that in asking the DPP, who gets a budget every year (and I read his annual report carefully) to do this—I think it is fair to say that not just him in that office, but prior DPPs, such as Mr Paul Rofe QC, now passed away—

Mr Gardner: DsPP.

Ms CHAPMAN: DsPP, that is good. It is a bit like, Your Worships, or something. So, Wendy Abraham QC. I cannot remember—we had that fellow from Victoria?

Mr Gardner interjecting:

Ms CHAPMAN: No, we have dealt with him. Pallaras, I think, from—what was his first name? Stephen?

Mr Gardner: Who was the Eliot Ness of the—

Ms CHAPMAN: He was the Eliot Ness, of course.

The ACTING SPEAKER (Mr Odenwalder): Yes, that is right.

Mr Gardner: Was he from Western Australia or—

The ACTING SPEAKER (Mr Odenwalder): He was 'the untouchable'.

Ms CHAPMAN: 'The untouchable', exactly. I did mention to the Premier at the time that Eliot Ness was actually a policeman in that TV series, he was not a prosecutor, but it seemed to be academic to him at the time. In any event, we had Mr Stephen Pallaras QC and, more recently, Mr Kimber. In the time I have been here I have been reading their annual reports and they say, in short, 'Look, every year we're asked to do more with less.' Whilst they might have a growth in their fund to cover the cost of increased wages, etc., of the prosecutors and staff in the DPP's office, every year they point out that they are being asked to do a higher load of work and they really do need extra funds. They are not saying, 'We're swimming in money over here.' They are saying, 'We need money.'

So, if you ask the DPP, who is dependent on the government to pay the funds to carry out the duties that they are required to do, to have a role and to make directions for confiscation then I think that does raise a very concerning aspect of this legislation, that it will lead to the potential for the DPP to be in a conflict situation about whether he needs to act as a debt collector for the government, or as a fundraiser for the government, to flush the coffers of the Treasury office to then support their bid for extra money.

I think that is an unconscionable position for any DPP to be in. They have an independent role. They have a very important role to make decisions about who gets prosecuted and to follow through and prosecute those cases in that role. This is an extra role the government is giving them and it is a little bit like the police and how they are expected to go out there day after day and get money from people who speed or commit traffic offences and monitor cameras to identify illegal behaviour and be debt collectors for the government. It is exactly the same.

To me, it raises a conflict of interest situation and I think it will place the DPP in a very difficult position because what is he going to do? Let us face it, he is thinking, 'Well, there's a bad egg come through the system. We've successfully prosecuted him, or we think that he's guilty of various offences and we've got this process, so look, I'm just going to nab this bloke. I'm just going to tap this bloke on the back. He's got some assets. He's got some beautiful houses. He's got a girlfriend living in one, he's got a wife living in another, he's got his mother living in another one, we're just going to go in there and take the lot.' Why? Because it will give him something to be able to say to the Attorney-General, 'Well, you know, I've got an extra $8 million, $10 million for you this year in confiscated assets. Fair crack of the whip, I want to have some extra funding for my department.'

Even the cost of him doing that, his time, or his senior officer's time in carrying out the investigation, making the assessment, giving the direction, it is all going to cost money for his department anyway, so of course he is going to go to the Attorney-General and say, 'Look, we've got an extra $8 million for you but, frankly, for the time and effort that we've put into all of this, I've issued these directions. It's been served. We've recovered the money for you. Our costs of recovery are this.'

So, we are going to get into the situation where the DPP has this role. If the government wants it that way, rather than as a court process—and we have all accepted that it be that way, provided we have a review in it—then so be it, but we want that review process. We do not want the otherwise situation where the DPP is under some obligation to do debt collection in the knowledge that this money is going into general revenue. That is an unconscionable situation and a potential, as I say, conflict of interest for the DPP.

If, on the other hand, the government were sensible in accepting that confiscated assets, like every other confiscated asset that we have in this realm, can go into the Victims of Crime Fund with half of it going into a rehabilitation fund, there is no conflict of interest. There is no potential conflict of interest, and the DPP can grant that direction in the full knowledge that the Treasurer, including his department, is not going to be dependent on it or feel some obligation to issue those directions and recover those funds as some morsel of invitation to entreat the Attorney and/or Treasurer, when they put in submissions to get more funding for their department. I think that it is terribly important. Whatever those proceeds might be—they might be nothing, they might be a couple of million, they might be $10 million in a year—let us make sure they go into a fund which can better use them.

Finally, can I say this: when we last debated this matter last year, the government announced that they were going to review the victims of crime legislation. They were going to introduce legislation which would allow for the $50,000 cap on applications to the Victims of Crime Fund to be increased to $100,000, and they did that. The Attorney-General came in here and laid on the table a victims of crime bill which incorporated that. It had a whole lot of other defects in it, I will say at this point, but I will not go into the detail of it.

He laid it on the table to increase it from $50,000 to $100,000 and this was consistent with his commitment to do that, but what has happened with it? That was months and months ago. He said he would lay it on the table for some general consultation. Promises had been made for months before that. In the meantime, the Victims of Crime Fund has just kept accumulating. I think it is up to about $175 million.

Whilst there is the power for that fund to be accessed for certain other specific purposes, its principal purpose is to be a reserve, as I said, for those who are victims and to be the first point of call for them to recover up to a certain amount of money. It also prescribes the circumstances in which the government can then go and chase the offender, where they are known, when they get out of gaol or when they have found some other assets or whatever. Sadly, in a lot of these cases, the person who is the offender often does not have much in the way of assets, so the recovery rate is not that good.

Of course, we have another little circumstance which has plagued the government's management of the Victims of Crime Fund in recent years, which was ultimately discovered, and that was the fraud on the Victims of Crime Fund from within the Attorney-General's Department, where the principal offender and his accessories, including his wife, were found to have committed a fraud. It has been through the court process.

The government have recovered some of that money. In fact, I had a notice from the Attorney just the other day that the figure he had given me some months before, I think at estimates, was not the total amount. In fact, it was quite a bit more of that money, but we are talking a $1 million fraud here where it was exposed that people who were managing these claims were taking off the top, essentially. Fraudulent claims had been identified and exposed, and various attempts have been made to recover that money.

Apart from having a bit of a hiccup in that regard, I have heard more recent complaints which continue to come in, which is why we are hoping the government can hurry up and get on with the legislation which they have promised. The processing now of very simple victims of crime applications for compensation is just taking an impossibly long time.

Recently, at a public function a practitioner came up to me and said, 'I do some victims of crime cases. We had a settlement of a victim's of crime claim for a quite severely injured victim back in September last year. We are now in February, and they still have not got the money.' What is going on in that department?

That is a four-month delay since the agreement of what the money would be. I am sure the member for Heysen has had a number of complaints—I certainly have—as to even the processing of the application, bearing in mind that the solicitors who largely attend to the victims of crime applications for people are very mindful of the delay for their clients, and they do it on a shoestring.

That is another issue, of course, that we will not even hope to remedy, that is, the scale of fees that are able to be recovered is miniscule. It would not even pay for the filing and photocopying of most of these applications, and the fairness of that has been debated in this house a few times, but it is decades since that issue has been reviewed and, understandably, for the few practitioners left who are prepared to even do this—generous as they are in doing it—the costs are prohibitive. It should not be an expensive exercise in time; it should be resolved.

These are the sorts of things that we are very anxious to get on and resolve with the victims of crime bill, if it ever hits our desk, so we urge the Attorney to get on with that. I will add one other aspect which has come to me, and I hope it has gone to him in the course of his apparent consultation on this. The question of dealing with victims of crime levies that are paid by juvenile offenders has been raised with me and, as I say, I hope it has been raised with him.

We have an absurd situation, really. A juvenile, a 14 year old, is charged with four offences, they get four sets of levy imposed on them, which can be several hundred dollars adding up to $500, $600 or $700, and guess who pays it? Not the 14 year old, I can tell you. Parents may pay it or it may remain unpaid but there is no discretion, I am told, to be able to provide for some dispensation in respect of this levy in multiple offences and for children. There is a continually perpetuated absurdity in relation to that.

The other thing that has become apparent is that, when property damage has occurred as a result of an offence, what happens, as I understand it—and I have never been involved in these cases; I have done plenty of victims of crime claims but not in relation to this—is that, say somebody has smashed the door in a robbery or a house break and damage is caused, they go off to court, the offender is brought to the justice, they are given a fine, they are ordered to pay a victims of crime levy, then they are ordered to pay the $500 for the prosecution costs, sometimes that is added in at that point, and then they are ordered to pay compensation to the victim of the owner of the door—$500, whatever that is—and it comes in after the levy.

The absurd thing about that is that the very victim of that offence, who cannot go to the Victims of Crime Fund because it is a property damage claim, gets lower priority to the taxpayers' fund, the prosecutors' fund and the levy fund, which they cannot even access. Again, judicial officers have raised this with me and I hope with the Attorney too, and when we finally get on to that legislation, it is going to be a long debate.

In the meantime, we do need money in that fund and we do need to be ready for it, and I ask the government to wake up to its importance. If they are serious about this legislation, these are very sensible reforms. The other house has accepted those reforms in a general sense. The petulance of the government in not accepting them, I think, is juvenile and suggests that they are insincere about the real reason for progressing this, or saying, 'If we do not get what we want then it can fall.' That, I think, is just childish and I think the government should grow up.

Debate adjourned on motion of Ms Digance.