Bills

Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 10 September 2015.)

Amendment No. 1:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendment No. 1 be disagreed to.

This is one of those, unfortunately, reasonably common groundhog-day moments where we get—

Mr Tarzia interjecting:

The CHAIR: The member for Hartley may not want to continue interjecting.

The Hon. J.R. RAU: —to relive the criminal injuries compensation legislation yet again. I do not know how familiar you are with the film—

The CHAIR: You know I am extremely familiar with the bill, and I am horrified that you would suggest I would be otherwise.

The Hon. J.R. RAU: Every time we deal with this particular theme, I can hear Sonny and Cher going in the background, you know, like when the clock—

Mr Treloar:I Got You Babe.

The Hon. J.R. RAU:I Got You Babe. Exactly, member for Flinders. Bingo! He's seen it too; the member for Flinders has seen it.

The CHAIR: Are you sure it's not If I Could Turn Back Time by Cher?

The Hon. J.R. RAU: Is that in there too? Well, anyway, so here we are. For those of you who have been in the parliament for a while, this is an old friend come back to visit, and for those of you who have not, you will get used to it, and you will see it a few more times perhaps before you leave. This is all about, obviously, looking after drug traffickers and not getting on with business.

What has happened is that yet again unacceptable amendments have been foisted on this legislation in the other place. They know full well that these amendments are unacceptable, because this is about the fourth time that we have done this, if I recall correctly—maybe the fifth, I am not sure. So even though there is an element of deja vu about this, I will go through, basically, the four amendments and summarise what the problems are with them.

The four amendments are basically these: the first one deals with the fund and what happens to the fund which results from the acquisition of these criminal assets. The second thing is some additional matter relating to appeals after one of these orders has been made. The third relates to the DPP providing guidelines, and the fourth relates to an annual report and a three-yearly review. This is sort of the current fashion accessory from the other place where, every time a piece of legislation goes through, instead of painting a moustache on it, or an eye patch, you add an annual report and a three-year review or a five-year review or something else.

All that is happening then is there are masses of paper and masses of reports being required to no particularly good purpose, and these reviews are regularly coming up. I can understand it if it was absolutely critical for there to be such a thing—

The Hon. T.R. Kenyon: Or a completely new bill or something.

The Hon. J.R. RAU: Yes, or if it was completely new. Indeed, were it not for the other three, and this were the only matter of contention, I would, in order to get the bill passed in an acceptable form, accept this amendment and be done with it. Unfortunately, all of these others are there as well, so since the legislation is going to be unsatisfactory anyway, I do not see why a matter which detracts from the legislation should be accepted on the basis that it is a concession when there is no concession forthcoming in the other direction. So that basically deals with number four.

As for the first one, this basically says that all of the moneys collected have to go to the Victims of Crime Fund. The first point: this money is not money which otherwise would have gone to the Victims of Crime Fund. It is not money which is being deflected from the Victims of Crime Fund and, in fact, it is money that is not presently being collected at all. This is a completely different source of money. What we have said here—and I think we have been prepared to make some compromise about this—is that it goes into a fund which can be used for broader justice purposes.

If you have a look at the restrictions placed on moneys being drawn down from the Victims of Crime Fund, it is fairly clear that there has to be a reasonably close nexus between a crime victim and the expenditure. To give an example, if a victim of crime needs to have a new security door put on the front of their house, or something of that nature, as a result of a crime, and they are fearful for their safety, that is pretty direct, and it is not uncommon for the victims' commissioner to say to me, 'Look, I think with so-and-so we should put a new security door on their house,' or something of that nature. That is a reasonably direct drawdown. However, what about a rehabilitation program for that offender? What about that? That is not directly helping any particular victim even though, in the fullness of time, that program might render that person less likely to reoffend, perhaps.

So point number one, as I said, is that this is not money that is being taken out of the Victims of Crime Fund, it is not money that would have been collected by anybody at all in the past. Point number two is that we do not want that money to be locked up in a highly prescriptive fund, which the Victims of Crime Fund is; we would like the fund to have more flexibility in terms of what we are able to expend the moneys on. Incidentally, I have heard the deputy leader, in particular, wax on about the size of the Victims of Crime Fund and the rate at which it is accumulating. It is not short of money; the deputy leader has actually made the point many times that it is not short of money. In fact, I think the point she has been making is that it has plenty of money.

So the Victims of Crime Fund is not a fund that is stuck for dollars, and there is a whole range of programs which are presently not necessarily foreseeable and activities which are presently not capable of being reduced into a statute, because I have not examined every single possibility in terms of rehabilitation or some other form of offender management or offender education or whatever it might be. I just want a flexible fund, to be able to do things flexibly, and the Victims of Crime Fund is not flexible.

This is a bogus argument about sending all this stuff across to the Victims of Crime Fund because it is all about victims. That fund has plenty of money, it has plenty of money rolling in. It is a highly prescriptive fund in terms of the purposes for which the money can be spent, and this money is not money that is being taken away from victims: it is money that is not being collected at all. So in relation to that, the answer is that that is an unacceptable—and it always has been, and it is well known by those in the other place that it always has been—amendment to the bill.

The second amendment is something a little bit novel; I do not think we have seen this particular one before in the several iterations of this being dealt with. This one is to do with appeals. It is my advice that this would make that bill practically unworkable. The amendment would give a court the power to vary or discharge an order completely without any structure, except by the vague notion of 'in the interests of justice'. What exactly does that mean? The answer is that it means whatever the judge who is hearing the application cares to think it means, without any guidance whatsoever.

Bear in mind that one of the important deterrent qualities of this legislation is the fact that if you do the crime you get convicted, and that is where you have your hearing. When you are charged with the primary offence you do get a hearing. You can argue anything you want. You can argue you were not there, you didn't do it—anything you like.

In the end if you are pinched and you are actually convicted, you have had a trial and either a jury or a judge alone has made a decision about your guilt or innocence. If they have found you guilty, we say the policy position is: there are severe consequences that flow from a finding of guilt, consequences which you should have taken into account before you started entering into the business of trafficking in drugs. That's it, full stop.

To put it another way: if you were ever to drive in excess of the speed limit—and I know, Madam Chair, you do not—but if you did, or somebody you knew did, and they were 10 ks over the speed limit and a policeman pointed a radar gun at them and a traffic infringement notice was issued, imagine what chaos that sort of scheme would look like if everybody thought that in the interests of justice they should be able to argue the toss about their speeding fine. I tell you what you would have: you would have a lot of people arguing about it, I can tell you. The point is, this is a known consequence of a conviction for a serious criminal offence, namely, drug trafficking. This is all about making the bill, basically, worthless, so that is an unacceptable amendment.

Then the third amendment, or the fourth, given that I dealt with the fourth first, is the one about DPP guidelines. The publication of such guidelines has a number of problems with it—leave aside the complexity of putting them out in the public domain. First of all, any offender who wants to insulate themselves against the consequences of this type of thing would only have to have regard to the published guidelines in order to ask their accountants, or whoever else, to construct their affairs in such a way as to place themselves outside of those guidelines. It is a monumental example of expecting the state to telegraph all its punches and enable the wily criminal to avoid them because they know where and when they are coming.

The second thing is: it is also, obviously, not possible to predict every circumstance that might arise, and we get into this: how much discretion do we give to the DPP? How prescriptive are we? It raises all sorts of questions about how the matter should be administered and, quite possibly, it occurs to me, might even involve the DPP being drawn into judicial review proceedings—and constitutional issues as well, as Mr Evans reminds me. This is another own goal; a real sort of own goal.

Taking all of these bits and pieces together, what we have is amendment Nos 2 and 3, which have the effect of rendering the whole scheme useless; amendment No. 1, which has the effect of putting the money somewhere where it is useless and unneeded, because there is already a large amount of money there; and the fourth amendment is tedious and annoying, not ultimately destructive but serves no useful purpose. But, in the context that the acceptance of that is not going to render this a bill that is going to meet the agreement of both houses at this point in time, there is no point in accepting that because it is not going to get us there.

The CHAIR: So that is a no, no, no and no?

The Hon. J.R. RAU: No, no, no and no, but if—

Ms Chapman interjecting:

The CHAIR: Order.

The Hon. J.R. RAU: If we got to the point where there was a withdrawal of the first three, I would be prepared in the spirit of compromise to say I will accept the fourth amendment, not because it does any good, not because it is a good idea, but because its harm is minimal compared to the others.

If there has to be some detriment attached to this bill because it offends the opposition's notion about the freedom of drug traffickers not to have their assets taken off them, let it be a little detriment like amendment No. 4, not fundamental destruction of the whole arrangement like the first three. With those few words, I am afraid the amendments are just not acceptable and I guess we will see where the matter goes from there.

Ms CHAPMAN: The Attorney has correctly outlined the four issues which the Legislative Council has considered and felt to be an improvement and, hence, we have the amendments before us reflecting those four requirements. Can I just make comment on each of them, firstly, the concept that we need to in some way ensure that the confiscated asset proceeds are going to find their way into the Victims of Crime Fund and not general revenue. There has been much discussion about the government having access to this money other than it finding its way to provide services for victims of crime.

If the Attorney takes the view, which I do not agree with, that the terms of the Victims of Crime Act are so prescriptive that he is finding it near impossible to be able to provide services to victims which can use up some of this money, I am happy to talk to him about changing some of the terms of reference. I do not actually accept that they are that prescriptive: I think he has a fairly general capacity to spend that money. I think it is disgusting that there is something like $220 million sitting in that fund and it is going to be used yet again in the June budget to prop up the Treasurer's balance sheet.

The CHAIR: You don't know that.

Ms CHAPMAN: I do know that, because we know that it sits there and we know that it is taken into account, just like the boating facilities fund, and there is an open space fund sitting somewhere. These funds have got millions of dollars in them and they all sit as a basis to support the financial balance sheet position of the government and its associated entities.

We have a bill before the Legislative Council to deal with an increased amount of funds for victims in individual claims, which is languishing up there sitting behind another bill which the government insists on dealing with, notwithstanding that the government say that they not only want it to happen but they have accepted an amendment we have put to it and everyone is ready to have it processed.

We will find, if we are lucky and it gets back here in March or April, the chance of any money coming out of that fund, even in this financial year, for all the cases waiting for that new regime to take place is zero. The reality is: yes, there is a lot of money in that fund, but there are a lot of people out there waiting for compensation and there are plenty of ways that the government could be addressing the application of those funds to suit the much-needed requirements of victims.

Consistent with the principle of fines from road traffic offences going into funds to deal with road safety, similarly, when you take away and confiscate assets, we put it in the Victims of Crime Fund, and that is what we want. Some discussion took place as to how we might vary that, namely, to add a portion of it for drug rehabilitation and a portion of it just for victims generally. Ultimately, the Legislative Council took the view that this was best contributed to by the Victims of Crime Fund, and the insertion that has gone in is:

The Attorney-General must ensure that in each financial year an amount equal to 50% of the proceeds of confiscated assets of prescribed drug offenders from the preceding year is, instead of being paid into the Victims of Crime Fund under subsection (1), applied as additional government funding for drug rehabilitation programs (and such money may be applied without further appropriation than this subsection).

If that is not a compromise, I do not know what is. I think that it is just petulance on behalf of the government that they should not allow for a contribution to be made in that manner.

As to the question of appeals, as the Attorney refers to it, let's just go back a stage. This is a process which is going to allow the DPP—who has a very important prosecutorial role, obviously, on behalf of the people of South Australia and whose principal role is to be an independent Director of Public Prosecutions—to have an extra job when making a determination in prosecuting cases involving serious drug offenders when making a decision about whether a confiscation order, in the terms of this legislation, should apply. That, like prosecuting, is to have a level of independence and we respect that, but what we say on this side of the house is: whoever makes the first judgement ought to be the subject of some capacity to be reviewed.

If it is a member of the Public Service, it is frequently under administrative appeal processes. The SACAT, the new South Australian Civil and Administrative Tribunal, has a significant role in this space now which has transferred from the District Court and the Supreme Court. If it is a minister who makes decisions then, yes, there can be some administrative appeal, but there is also accountability to this parliament and, of course, ultimately, to the public.

If it is a judicial officer, a judge of the Supreme Court or the Chief Justice of the Supreme Court, who makes a decision, he is reviewable by the Full Court of the Supreme Court, and, ultimately, the High Court. Even the Chief Justice of the Supreme Court is a person who is in service to the people of South Australia and whose decision is reviewable.

The biggest problem with not having a review process for the decision that the DPP is being asked to make, in this instance, is that, understandably, his decision, essentially, will be in secret. I remember we had this conversation during the debates in this house when we considered whether the head of the Department of Corrections should have a role in determining matters as to the release of prisoners. It was a bill to transfer the power of doing that from the minister across to the head of the department, in this case the head of the Department of Corrections.

Instead of being a ministerial decision which, of course, is able to be transparent to the extent of being accountable here in the parliament, decisions were to be made by the head of Corrections. Some of them were small things, like the right to be able to withhold pocket money or questions in respect of their storage of chattels (whether they had too much gear to store at the prison). These seem to be basic administrative things that were quite reasonably transferred to the head of the prisons. They had a hands-on role and that was reasonable.

There were some that were very concerning to me and they were decisions to be able to place a prisoner in solitary confinement and the risk that you have when a departmental head, without the scrutiny of parliament like a minister would have, makes those decisions when he or she might be under enormous pressure to deal with the discipline or bad behaviour of a prisoner, even though there are a whole lot of international conventions which supposedly protect prisoners from being put in solitary confinement as a disciplinary measure.

The point was made at the time. Let's be clear. If you have got someone who is administering a prison, whilst they might have the understanding of the day-to-day arrangements, there is a good basis upon which those decisions may be made consistent with the convenience or pressure of the day—namely, prisons are overloaded, the need to deal with that by release, home detention, behavioural management, putting them in solitary confinement. These are the sorts of things we have to be careful about here in the parliament.

What is being asked here is that we do not need a judge to make an order of confiscation. We will just get the DPP, who will go through the files—tick, cross, tick, cross—of the serious drug offenders as to whether it is appropriate that we take his beach house, or his plane or his speedboat, and we are going to leave that role for him. The government is saying that that is a role that he is to have and that it is unreviewable. We are saying that, with the Legislative Council's blessing, what is appropriate is that a judge ought to have the right to review that on application, ought to be utilised to do that, and a judge is restricted to the extent of it being in the interests of justice.

In other words, you cannot just do it as boldly as the Attorney would have us think, that is, whatever the judge thinks. That is a nonsense and an insult to a member of the judiciary who might be in this position. They do have to be satisfied that it is in the interest of justice. Sure, someone who is a convicted drug offender either knows, or should have known, or certainly would get advice from their legal representatives as to their risk and the penalties that might be attracted—imprisonment, fines, confiscation and the like—and they might know that their beach house, or their speedboat, or their racehorse, etc., is about to be confiscated; but that is not and should not be without any kind of capacity to review. The Legislative Council agrees with us, and it is important.

Remember, going to a judge for review of this is not without the risk of penalty—costs and the like—and, therefore, there is sufficient protection against just arbitrary reviewing on the basis that someone wants to be difficult.

The other thing is that on my understanding—and I may be wrong on this, and the Attorney will soon set me straight if I am not—more often than not, on current confiscation orders, which apply to direct proceeds of crime under our current two sets of confiscation laws, it is a rare time indeed that somebody actually objects. What happens at present is that the order goes out, the edict is there, the confiscation is undertaken, and guess what? The person who might be sitting in prison, or might be now moving interstate and setting up somewhere else, does not come back to argue the toss over what has been taken. I think it is about $8 million a year that comes into our public funds as a result of confiscation.

Certainly, those who are in this space—serious offenders who are convicted of serious crime and who have this unexplained wealth, for example, or who have proceeds and assets from ill-gotten gain—just abandon and move on to the next lot. That is my understanding. If I am wrong on that—and there is a massive amount of litigation happening in the courts which suggests that there is an abuse of that—then you can tell me.

Motion carried.

Amendment No. 2:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendment No. 2 be disagreed to.

Motion carried.

Amendment No. 3:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendment No. 3 be disagreed to.

Ms CHAPMAN: On that matter, I will just continue, if I may. On the third issue—

The CHAIR: You have three questions on that.

Ms CHAPMAN: —on the DPP guidelines—I do not have questions because this is an amendment from the Legislative Council, so I do not need to ask the Attorney what his position is: I just need to put to you, Madam Chair, our position. What is in this amendment are the DPP guidelines and we support them. We say that they are similar to the Commissioner of Police's guidelines for dealing with car chases in relation to people who terrorise our streets and neighbourhoods.

They often steal a car or go for a joy ride and then find that, some kilometres down the track, they have caused havoc and carnage on the way—sometimes, sadly, killing themselves and other passengers in their vehicle and, even more tragically, killing other pedestrians or road users. The police have to make a judgement about whether they chase the car of an occupant who, with reckless gay abandon, drives around the streets and causes this damage and danger to the public, whether they put up the helicopter and follow them until they run out of petrol or whether they put tacks on the road to burst their tyres as they scream across a road.

They have to make a judgement about what is the safest thing they can do but, at the same time, undertake their responsibility to apprehend, take into custody and, ultimately, convict the offending parties. It is a hard call sometimes, so the Commissioner of Police has a set of guidelines outlining in what circumstances there ought to be a chase. It does not cover all circumstances, but it tries to give options about the level of risk that is observable and at what times and in what circumstances it is reasonable to get in a car and chase down this person, resulting in a very heightened level of further danger.

Why do we do that? Why do we ask the police commissioner to have these guidelines? It is because about 40 people a year, I think, die in car chases and that is a tragedy in itself. The public demands that there be some threshold, some level of assessment, some rules that apply before a trigger-happy or heavy-footed police officer gets into a car and starts screaming down the road following a 14 year old or a 16 year old or an older person who might want to outrun the police.

That is why we have these rules or guidelines, and it seems to me that, in this instance, we are going to allow the DPP to make that assessment, as he currently does on whether there is some likelihood of there being a successful prosecution. He has to go through and make a determination about whether he is going to prosecute a case that has been sent over from an investigative body—usually the police, but sometimes others—and say, 'Yes, we're going to proceed with this case,' or 'No, we're not.' I do not doubt for one moment that he has to exercise his mind on questions such as: 'What is my budget? What are the resources I have available? Have we got any witnesses? Have we got a body? Have we got a confession?'

These are all things that the Director of Public Prosecutions has to assess for the purposes of sensibly applying the budget that he has, bringing about justice, protecting the community, etc. If there is going to be some review of this, then the DPP guidelines ought to be in place. This is an initiative, I think, coupled with the review process, which is important, and I thank the Legislative Council for doing it.

As to the review, quite simply, the Attorney-General knows full well why we have reviews. If you are going to introduce something that is novel, or has been introduced in other jurisdictions but we need to have a look at how it is going to work and before there has been really a reasonable time for review of that, let's put in a time frame of our own.

Why do we do that? It is very simple. If we do not do that, then we have got to go through the whole process again of justifying bringing in a bill and seeking to have some review. This is a way in which you either have a sunset clause or a review process, and you have annual reporting so that you can monitor how that is going; that is why we have this.

You cannot trust the government to do it. They just want to flick this through the parliament, put it over in the done basket and not deal with it again. We are not going to have a situation where there are going to be actions taken by executive officers in secret with the funds disappearing into the control of the Attorney. No, we are not going to have that.

We are not going to have him propping up judges' wages or pretending to build another court and then cancelling it yet again. No, we are not going to have that. We are going to have proper management of the proceeds of this initiative, which we otherwise support. It is going to be reviewable and, frankly, the Attorney needs to suck it up.

Motion carried.

Amendment No. 4:

The Hon. J.R. RAU: I move:

That the Legislative Council's amendment No. 4 be disagreed to.

Motion carried.

The Hon. J.R. RAU: I just wanted to say thank you to all concerned. I thank the deputy leader for her much more concise, punchy contribution on this today, but we have done it before, so I guess we both have some experience in this area.