Bills

Criminal Assets Confiscation (Miscellaneous) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 1.

Mr ODENWALDER: Attorney, I note in the conclusion of the second reading debate you noted some consultation with SAPOL. Is this new consultation? You are not basing it on advice the previous government received?

The Hon. V.A. CHAPMAN: No, the consultation I referred to related to the amendment that we moved to delete the search powers. That was the consultation I specifically referred to. I think I also mentioned in the final contribution I made that, since we have been in government, to the best of my knowledge I have not had any people from SAPOL knocking on our door to advance that issue, which of course is not the subject of this bill. I was hoping to at least outline, given your question in your contribution, what the current government's attitude may be in relation to that part of last year's bill that died, so to speak.

In relation to this one, my recollection is that in relation to these amendments—because there was only one tiny amendment to it—upon the new government being sworn in, presentations have been made to us in relation to some outstanding matters that either had lapsed in the parliament or had not received some support. I had another one today where the former government had put up a bill, we had amended it but it did not go anywhere and it was left in deadlock: 'What you want to do with it?' That is the type of list of things that came to us as a new government.

We considered, on this matter, that it was still an outstanding issue. It had been agreed before and therefore we should exercise it. My recollection is that when things of this nature occur, there is some internal consultation, which I assume would include SAPOL.

Mr ODENWALDER: So there has been new consultation between your office and SAPOL this year around this bill.

The Hon. V.A. CHAPMAN: Yes.

Mr ODENWALDER: What other consultation was there with other agencies?

The Hon. V.A. CHAPMAN: I will just check that, because I know that it was internal. It was with the DPP, the Crown Solicitor's Office and SAPOL.

The CHAIR: This is your fourth question on clause 1, which I will allow.

Mr ODENWALDER: I am new on this side.

The SPEAKER: We are all new, apart from the Attorney, an experienced hand.

Mr ODENWALDER: One more question on this clause and it is a simple question: will you furnish the opposition or the house with copies of these submissions? Will they be made public?

The Hon. V.A. CHAPMAN: To the best of my knowledge, they did not put submissions, but I will check that. It is just internal legal advice between those agencies. We might just check between the houses as to whether anything in writing came from SAPOL, but I do not believe so.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

Mr ODENWALDER: I may have missed some of the debate on this bill, so I apologise to the Attorney and I apologise to the house if some of these things have been covered in the debate. I need to go over some of them. I know you made mention of this in your last contribution but could you clarify what constitutes not being in the financial interests of the Crown? You said things that are of a meaningless value and that sort of thing. Could you clarify what constitutes not being in the financial interests of the Crown and will there be regulations around this and specific things excluded, or will it be on a case-by-case basis?

The Hon. V.A. CHAPMAN: My understanding is that no regulations are going to be proposed in relation to this. The process will be on application of the DPP, ultimately to the court, to identify the property that they want to take into possession and dispose of. When something is contrary to the financial interests of the Crown, that means it would not be likely to recover sufficient moneys to outweigh the cost of storage, sale, etc. When something is of minimal value, or it might be very difficult to sell or to find a buyer, that would be the classic situation of not being in the interests of the Crown.

In the consultation I have had on this matter, the issue of motor vehicles has frequently been raised. As the member might appreciate, being the shadow minister, when we deal with hoon driving, for example, this is quite often another dilemma where someone might be taken into custody, in the offence scenario, and that vehicle sent off to be crushed and the cost of crushing is more than the value of the vehicle. Then, of course, there is an issue of whether there is any chattel liability over it; that is, there is some debt and there is some security over the item.

The other provision is when it is not in the public interest for the property to be forfeited. I cannot immediately imagine an example of that, but I will inquire. One has just sprung to mind where public interest may be considered, namely, that there would be sufficient asset base to take from other assets and, therefore, it may not need to apply. For example, where there is a jointly owned property—for example, a home—and the wife and children are left. She offers to purchase the offender's interest in the property. That circumstance may well be a situation where they say, 'No, we are not going to force the sale of this property. We will accept the money,' and obviously that can go towards confiscation.

Flexibility is the key here—not to have to take assets they do not want, that are not going to be worth anything—then, subsequently, in the provisions, to be able to settle on a monetary payment in lieu of that, and, thirdly, to be able to take just the ones that are worth something. Commonly in this area you will find if there is cash or money that is easily garnisheed or removed from a bank account, obviously that is a lot easier than selling some broken down motorcycle.

Mr ODENWALDER: I am sorry if I am going over this particular point, but will there be specific regulations or policies that govern the communication with third parties in those instances? The family, or banks, or any third-party ownership?

The Hon. V.A. CHAPMAN: The arrangements will be at the discretion of the DPP, who will be making this application, as to what they seek to be made available—or the other way of putting it is what they will be relieved of. Then, if the court is satisfied, they will exclude certain things that they do not have to take, and that will be managed by the DPP. There will not be regulations to deal with it.

Clause passed.

Clause 6.

Mr ODENWALDER: A very quick question, Attorney: can you clarify whether this is the same as the provision in the former government's bill?

The Hon. V.A. CHAPMAN: Yes, it is.

Clause passed.

Clause 7 passed.

Clause 8.

Mr ODENWALDER: Attorney, can you confirm that this is the same as the provision in the former bill?

The Hon. V.A. CHAPMAN: Yes, it is.

Mr ODENWALDER: Is there a specified period of time that the government will hold seized and forfeited assets before disposing of them and, if so, how long?

The Hon. V.A. CHAPMAN: This clause actually relates to costs and exemplary or punitive damages, not the time frame on the act, but we will just find that for you. I am happy to find that answer. This relates to not being able to have punitive or exemplary damages. We are on clause 8—Cost orders. This clause is about not awarding certain cost orders in relation to damages, but in any event, I am happy to get that information for you if I can.

The CHAIR: Are you looking for that information now, Attorney?

The Hon. V.A. CHAPMAN: No, I'm happy to go on.

Mr ODENWALDER: I appreciate your indulgence; I am nearly finished. I have no further questions on clause 8 other than the pending one.

The CHAIR: Okay, we will wait for that response.

Clause passed.

Clause 9.

Mr ODENWALDER: Again, Attorney, can you just confirm whether this is or is not the same as the provision in the former bill?

The Hon. V.A. CHAPMAN: That is exactly the same as what was previously presented, which is just the regulation-making power amendments.

Mr ODENWALDER: Attorney, if you are in a position to do so, could you tell the house what regulations are currently being considered?

The Hon. V.A. CHAPMAN: None have been drafted. My understanding with these matters is that once the legislation is passed then action will be taken to prepare those. There are some occasions—and I can recall this from the former attorney—advising that draft regulations might have been on the way to being prepared, especially where there is existing legislation. This law currently has regulations but these amendments do not. So whatever amendments are likely to be made to the current regulations under the Criminal Confiscation of Assets Act I expect are those which will be amended. The regulatory regime that sits below this, if required, then will be to those regulations.

Clause passed.

The Hon. V.A. CHAPMAN: If I might just assist the committee by reporting that section 74(1)(a), (b) and (c) set out the rules that apply to the time limits. There are some qualifications there, but essentially it is six months.

Mr ODENWALDER: In the bill?

The Hon. V.A. CHAPMAN: In the act.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:35): I move:

That this bill be now read a third time.

Bill read a third time and passed.