Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill

Final Stages

Consideration in committee of the Legislative Council's message.

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

That the disagreement to the Legislative Council's amendments be insisted upon.

This particular legislation has quite a history. I think it was first introduced in 2011. I think it was then introduced again in 2013, then again in 2014 and then again in 2015, and we are dealing with the 2015 iteration of this bill. On every occasion—

The Hon. S.W. Key: Age will not weary us.

The Hon. J.R. RAU: Age will not weary us, nor the years condemn. The point I am trying to make is that every time the House of Assembly has passed this legislation, it has gone to the other place and, every time it has gone there, it has been neutered by the other place. Before I deal with some of the detail of the neutering of this legislation on this particular occasion, I just want to make an interesting point.

An honourable member interjecting:

The CHAIR: Order!

The Hon. J.R. RAU: I thought I might start with a look towards the future.

Ms Chapman: Is this on the interweb?

The Hon. J.R. RAU: No, beyond the interweb I want to quote from what I am told is an inspiring document and it is called, tantalisingly, '2036'. It was released by the Leader of the Opposition recently, and I would like to quote from this august tome. It states:

Substance abuse is a major factor in contributing to crime, family breakdowns, lost productivity and broken opportunities across our community.

It is very hard to argue with that. One can almost hear Max Bruch's violin concerto playing quietly in the background. It continues:

The prevalence of the drug Ice in metropolitan and regional communities has seen the emergence of extraordinary new challenges for families, police, and other agencies.

Who can argue with that? The document goes on:

We believe government—

by the people, for the people, of the people—

must be committed to delivering the concerted effort needed to tackle the problems of substance abuse. This may include evidence-based public health campaigns to reduce demand, more health and rehabilitation opportunities for addicts seeking to recover, and—

and here are the words that everyone should just carve into a basalt slab and stick in their bedroom, so they can look at it every morning when they wake up—

cracking down on the organised crime syndicates who sell drugs.

Apocryphal words from '2036'—cracking down on the organised crime syndicates who sell drugs. Of course, that is exactly what this bill does and it is exactly what the last three iterations of this bill have tried to do.

Of course, it is disappointing, because the opposition have not followed through on their pledge. Here is their first chance to say to the people of South Australia about 2036, 'We see it there. It is not a mirage, it is a real thing. We are the real thing. We are going to support this like Russell Morris and so on.' They could be the real thing, but they are not. They are not Coke, they are not even Pepsi. They are not the real thing. They are prepared to go out there with all this fine sounding waffle like, 'We are tough on drugs. We want to crack down on the source of drugs,' but then when it comes to it do they man up and have a go? No.

What they do is they find these pathetic excuses for arguing against it and they do not even have the courage—or at least the last three or four times—to actually vote it down. What they do is they attach unacceptable amendments to it so that the thing comes back in a scarcely recognisable form and it has been morphed. It is full of Semtex or one of those other things that they use in conflict zones. You know that if you allowed the thing to go forward in that form, you would be wasting your time and it would be a cruel hoax on the public. They neutered the legislation, they sent it back and said, 'We are supporting it,' just like with small venues when they said, 'Yes, we are supporting small venues, as long as you can't have more than 20 people in them.' That is a great economic model—a small venue with no more than 20, or was it 50?

If the opposition was serious about cracking down on people who supply drugs—there are two sides to the equation. There is the supply side and there is a demand side. We all agree on the demand side. We have to have education, we have to have health focused policy responses. We totally agree with all that. But what we do not agree with is the notion that all you do about the supply side is incant these words from '2036' and think that is enough. Well, it is not. You have to do something.

The way you do something about the supply side for drugs is you ask yourself: why do these people supply drugs? Does anyone know why people traffic drugs? Is it because it is fun? Is it because you get a lot of great respect in the community? What could it possibly be? Could it possibly be because you make an enormous amount of tax-free money that you do not have to account for? You do not even have to work. You just spread misery through the community, have a whole bunch of kids turned into crackheads. You have crime going on everywhere, but that is fine because you have a new boat, a new car, a new house. Terrific! Great!

So, what did we say? We said we are going to take all of the incentive out of this the game for these characters. Instead of them being able to do these things and, if we catch them, sure, they go to gaol, but when they come out, somebody in the Bentley picks them up and they go off to the golf club and they have a couple of rounds and just sit back and enjoy the pina coladas. No. We want them to be rubbed out, financially rubbed out.

In other words, if you want to keep doing that business, you are putting all your chips on the table, not just the chips we find in the box in your cupboard with the cocaine and the bit of rubber band around it; that is not the only stuff that is up for grabs. It is the whole lot. Everything. I reckon that is attacking the incentive right where it actually makes a difference which is why these characters are doing this in the first place.

Remember, these people are spivs who are not interested in having an honest job. They are interested in finding easy money by doing things that are illegal and exploiting other people; that is what they are on about. They are just spivs. I do not have any compunction at all about getting stuck into these spivs, but there are some who do. There are some who say it is not fair on the spivs. What if the spivs do not enjoy it? Well, bad luck. What if the spivs have kids? Hello, maybe the spiv who is dealing in drugs should say to themselves, 'Hey, I've got kids.'

Ms CHAPMAN: Point of order: if this is the short version—

The CHAIR: You are making the thing longer.

Ms CHAPMAN: No, I just raise the point of order at this point and place on the record that none of this is actually relevant to the direct bill, but I note that the—

The CHAIR: We will listen to everything you say as well, which may or may not be relevant.

Ms CHAPMAN: Thank you, and I expect the same licence.

Members interjecting:

The CHAIR: Order! Let's get on with it then.

The Hon. J.R. RAU: This is really the prologue, if you like. I just want to make it very clear to everybody who is paying attention to this that this is the fourth occasion we have tried to do something about this. It is the fourth time we have been neutered by a bunch of softies, a bunch of softies who care more about the sensibilities of spivs who sell drugs to kids than they do about ruining and bankrupting these people.

I can say that I have sought counsel around Australia. I have spoken to the Attorney-General of Western Australia, who is not a member of the Labor Party, and he has legislation like this, although his is a bit tougher.

Ms Chapman interjecting:

The Hon. J.R. RAU: Yes, and he tells me that it is fantastic and that it is the best thing that ever happened in Western Australia.

I do not know if any of you know Mr John Elferink, but he is a man of many capabilities: he is Attorney-General, he is Minister for Health, he is Minister for Correctional Services. He is a very inspiring man. He is an ex-policeman and he has done many things. Even though John and I are not on the same side of politics I have reached out to him and said, 'John, you've got this legislation. In fact, your legislation on this was taken to the High Court and you succeeded.' I have just remembered the first excuse they used, the first reason it was not going to work: the High Court would not like it. Well, bang, that one is gone.

John Elferink, the Attorney-General of the Northern Territory, tells me, 'This is the best thing that we've ever had. These crims just come up to us and offer chequebooks full of money just to get this thing off our backs.' I said to him one day, 'Mr Elferink,' or occasionally I call him John, 'would you mind speaking to the member for Bragg if she ever crosses your path?' He said to me, 'Look, I will share with the member for Bragg the great joys that this legislation has brought us here in the territory.' I believe he has—

Ms Chapman: Yes.

The Hon. J.R. RAU: But I believe that the member for Bragg may not have taken all of his wise counsel on board. That is the end of the prologue, and I now move into the particulars.

The CHAIR: So you are now moving back.

The Hon. J.R. RAU: Perhaps I will get to that at the end of the moving bit.

The CHAIR: No, the chair might have to be insistent that you move and then finish your remarks. You have about four minutes left and then the member for Bragg is going to answer you.

The Hon. J.R. RAU: First amendment, credit to the VOC fund, this is not money that would otherwise be going to the VOC fund. This money does not exist presently, so the notion that the VOC fund is missing out on it is a complete furphy. Why should we be so prescriptive about where this money goes? The justice fund needs to be flexible about where the money can go; it should be able to go where it is needed to make the greatest impact.

In relation to the justice reform, we should be looking at various rehab programs, but there might be other uses for the money. We totally reject the notion that some savant in another place is going to be able to tell us in advance where that money should be going. The second point—

The CHAIR: Before you go on, are you talking to each clause one at a time.

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

The CHAIR: But your actual motion is that the disagreement to amendments 1 to 4 be insisted upon.

The Hon. J.R. RAU: Indeed.

The CHAIR: I just want to make that clear.

The Hon. J.R. RAU: No. 2 is another intervention from the other place. I think the vernacular there is 'improvement'. The second one is appeals. This makes the bill unworkable essentially.

Ms CHAPMAN: Madam Chair, I do not want to arrest the Attorney in full flight but I have a set of minutes in front of me, which is one of Mr Darley, which is to delete clause 20. The next is to deal with the VOC, which is No. 2.

The CHAIR: Which is clause 21.

Ms CHAPMAN: I think the Attorney is about to go into full flight about appeals, so can we just be sure that we both have the same set of documents.

The Hon. J.R. RAU: I have four topics here. I am not sure which order the member for Bragg has.

The CHAIR: Do you have two pages, member for Bragg? The first page ends on No. 4, correct?

The Hon. J.R. RAU: Delete clause 20.

The CHAIR: I just want to make sure what you are looking at and that you and I are looking at the same thing, No. 4.

The Hon. J.R. RAU: Let me find out what clause 20 said. I am trying to find out what the original looked like.

Ms Chapman: Credit to funds, amendment of the heading. It had the heading 'Credits to funds'. It is an amendment to the heading.

The Hon. J.R. RAU: Anyway, I oppose that; whatever it is, I oppose it. This is the clause which says that a certain percentage has to go here, there and everywhere. It is just bad public policy and I disagree with that, so they are sort of all of a piece. We then get to the Hon. Mr McLachlan's introduction of a clause about—

The CHAIR: That is amendment No. 4.

The Hon. J.R. RAU: Yes. As I understand it, he decided he would jump in on the subject of appeals. Let's be clear on this: this legislation only has work to do when a person has already been convicted in a criminal court on the criminal burden of proof (that is, beyond reasonable doubt) of being a really serious drug trafficker. They are the only people this bill applies to, so let's get that clear.

So it is proven beyond reasonable doubt that this person is causing serious mayhem in the community, but here is what the softies in the other place want to do: they want to say that these characters should be able to appeal, and other people should be able to appeal, and the court should thereafter have the power to vary or discharge completely or partly anything that the court has ordered in the interest of justice, whatever that means.

This amendment would render this bill a joke; it would neuter it. This is the bit which is the unkindest cut of all—this bit. If there was a last bit you would want to happen, it would be this bit.

The Hon. S.C. Mullighan: Dog and Cat Management Act.

The Hon. J.R. RAU: Yes, it is like we are getting into the D and C Management Act. This is not what you want to happen. This amendment is just not acceptable. This is because they want to able to say, 'Oh, yes, we're tough on drug offenders,' but then they say, 'And we have just opened up this huge trapdoor where you can all run away again.' Sorry, you have to get up pretty early in the morning to beat the Minister for Transport and me on that one.

The third amendment is DPP guidelines. This is a beauty. As if the one before is not a big enough hole that all these crooks can jump into, this amendment says that the DPP has to go out and say, 'Excuse me, Mr Convicted Criminal, just in case you want to know how I am going to go about doing stuff, here is my own internal rule book and, because I am publishing it to you, you can go around judicially reviewing whether I have followed my own rules.' Well, isn't that smart?

Any lawyer worth two bob could keep the DPP tied up indefinitely in a court of appeal, an appeal on an appeal, on prerogative writs and God knows what over that sort of stuff. It is the legislative equivalent of sticking a grenade in the DPP's mouth and pulling out the pin. How that is helping the public crack down on druggies, I do not know. Is there starting to be a familiarity about all this? It is like, 'Nothing to see here, folks. We haven't changed the ornaments in the window, we haven't changed the manikins. We have just taken all the stock out of the back of the shop, loaded it into a car and driven it away.' It is a disgrace, an absolute disgrace. Sorry, I took one of the deputy leader's words—I withdraw that.

Were it sufficient to resolve this matter today, I would be prepared to accept the last amendment, the notion that there be an annual report and a three-yearly review. Were that the only matter between here and the other place, I would be prepared to accept that. I acknowledge the esteemed gentleman who has just joined us.

The CHAIR: That is my job, not yours.

The Hon. J.R. RAU: I beg your pardon. He must be here to watch his protégé.

The CHAIR: It is bad luck you are nearly finished then, isn't it.

The Hon. J.R. RAU: Yes.

An honourable member interjecting:

The CHAIR: Yes, he is.

The Hon. J.R. RAU: That is roughly the size of it.

The CHAIR: The deputy leader is going to respond to all of that in her own inimitable fashion in her 15 allotted minutes.

Ms CHAPMAN: I am happy to do 15 minutes per amendment, if you like.

The CHAIR: Let's not up the ante on each other.

Ms CHAPMAN: For the purposes of this exercise, in case I need 18 minutes, I will refer to amendment No. 1 and proceed as follows. This amendment, together with amendments Nos 2 and 3, has been introduced by the Hon. Mr Darley in another place to secure the investment of any proceeds under this proposed legislation to follow what every other confiscated asset proceeds does—that is, go into a hypothecated fund largely for the benefit of victims. We already have two sets of confiscation laws in South Australia that operate, and I will refer to those in a minute, and how comprehensively ineffective they have been in recent years in actually successfully concluding any compensatory amounts. However, around Australia where that formula has been followed, it does recover some millions of dollars a year and follows the placement of those moneys into funds allocated for victims.

All this does—and the Hon. Mr Darley has spearheaded this throughout the time—is to say that, if there is further confiscated asset which is received from this new process, then it too should follow that course. It should not go into general revenue, it should not be available for the Treasurer or the Minister for Transport or probably the Minister for Health (he is in the biggest trouble probably) to prop up their budgets. It ought to follow our proven formula. He has said that, as a compromise, credit of the funds ought to be available either to the provision of services for drug addiction treatment in rehabilitation programs or to the Victims of Crime Fund generally.

That fund, which is a statutory fund, has over $207 million in it at the moment. After further negotiations, the compromise presented, which the Legislative Council accepted with our endorsement, is that the Attorney-General must ensure that in each financial year an amount equal to 50 per cent of the proceeds of the confiscated assets be paid to VOC, and this is what we are asking for.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: This is what we are asking for. It is to go on to make provision for application as 'additional government funding for drug rehabilitation funds, and such money may be applied without further appropriation from this subsection'. That is all they are asking for. We have just had all this rant from the Attorney-General about how unacceptable it is that this money be taken out of the control of the cabinet to spend on whatever stupid scheme they have in next year's and the following year's budgets. I do not think it is unreasonable to quarantine 50 per cent of it back into what it is there for, and I do not think this house should accept that that is unreasonable.

If any one of them were genuine in their commitment to ensure that when we do confiscate assets it is for the provision of those who are victims, then they would support this. The Attorney-General would come in here and say, 'Well, I have thought about this three times and I think this is a sensible compromise and I'm going to accept it.' But, no, he has not. He has spat the dummy and said, 'I'm not going to accept it at all.' So it is totally inconsistent.

The CHAIR: Can I just clarify: is the member for Bragg correctly expressing your position on this?

Ms Chapman: Correctly? He has just rejected—

The CHAIR: Hang on, I am just asking. I just want to make sure you are not being misrepresented.

The Hon. J.R. RAU: No, okay. Just so my position is clear, there are two points. Point No. 1: we are totally opposed to the idea of decanting even more money into VOC because there is plenty of money in VOC and it is very hard for money in VOC to be spent, given the constraints set around VOC. So, I am totally opposed to that.

Ms Chapman interjecting:

The Hon. J.R. RAU: No, we are dealing with something here.