Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: The Liberal Party has consistently promoted and supported legislation to confiscate assets where they are the proceeds or instruments of crime, even if they were lawfully acquired or where they represent unexplained wealth. The Liberal Party led the moves in this parliament to move against unexplained wealth. This bill is distinctively different from those previous bills in that it proposes to authorise the seizure of assets unrelated to a particular crime, disconnected from any other penalty that the offender may receive, even when a person can prove that the assets have been legally acquired.

In second reading speeches of the government on earlier versions of this bill the government admitted that there were doubts as to the constitutional validity of the measures. These fears were borne out in the Emerson case; the Supreme Court of the Northern Territory struck down a similar bill on constitutional grounds. In April this year the High Court considered the constitutional issues on appeal and upheld the bill. As a result the Liberal Party in this parliament has looked afresh at the bill. The constitutional validity of the bill was fundamental and it has been affirmed.

Our other concerns can be, in our view, ameliorated by amendments, and we have filed amendments to that end. The Liberal Party supported the passage of the bill through the House of Assembly. We supported the House of Assembly on 18 June 2014 and the Hon. Kyam Maher acknowledged that fact when the bill was considered in this place on 3 July. The shadow Attorney-General, Vickie Chapman, the member for Bragg, publicly stated our position five weeks ago in The Advertiser on 26 September, as follows:

Opposition justice spokeswoman Vicki Chapman said the Liberals would propose some amendments, including guidelines for the Director of Public Prosecutions when enabling confiscation orders and a provision for appeals.

Then there is a quote from Ms Chapman as follows:

We want to ensure the proceeds from confiscated assets are directed to the Victims of Crime Fund and drug rehabilitation programs rather than general revenue.

Yet, the Attorney-General was on radio during the last sitting week playing politics yet again with the Legislative Council by suggesting Liberal opposition to the bill. There was no acknowledgment of the House of Assembly vote or the Liberal Party's public statements on this bill.

In terms of improving the bill, we have three proposals: first, we seek to provide for a review of confiscation decisions in the interests of justice. This reflects the 2014 ALP election policy, which talked about extending the scope of the confiscation power and making it subject to judicial oversight. The Liberal amendment is consistent with that promise. Secondly, I will be putting forward amendments that propose the publication of confiscation guidelines by the DPP and, thirdly, for an annual report. I look forward to further explaining the amendments in committee and considering amendments proposed by other members.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–1]—

Clause 5, page 3, line 30 [clause 5(5), inserted paragraph (d)]—

Delete 'would' and substitute 'could'.

This is the first of a series of amendments, the aim of which is to provide the courts with discretionary powers when considering whether or not a person is to be declared a prescribed drug offender in instances where the conviction in question involves cannabis oil and the offending was committed for the purpose of treating a medical condition.

Given that they are all related, I am going to use this amendment as a bit of a test clause for Amendment Nos 1 through 6 and speak to them all at this stage. Amendment No. 1 simply changes the definition that applies to 'tainted property' to reflect this discretion by swapping the word 'would' for 'could'. The second amendment is consequential upon Amendment No. 3 which provides the court with its discretionary powers when dealing with convictions relating to cannabis oil. It is really a qualifying provision.

Clause 6A(1) of the bill provides that for the purposes of this act, a person is a prescribed drug offender if the person is convicted of a serious drug offence, the conviction offence, committed after the commencement of this section and (a) the conviction is a commercial drug offence or (b) the person has at least two other convictions for prescribed drug offences and those offences and the conviction offence were all committed on separate occasions within a period of 10 years, not including any period during which the person was in government custody.

Amendment No. 3, the key amendment to this series, goes on to provide the circumstances in which a court can opt to exercise its discretion.

Members interjecting:

The CHAIR: Order! The Hon. Mr Darley has the floor.

The Hon. J.A. DARLEY: It provides that a court may, on convicting a person of the offence, declare that the person is not to be a prescribed drug offender for the purposes of this act if (a) the person requests the making of the declaration and (b) the conviction offence involved cannabis oil (and not any other controlled drug) and (c) the court is satisfied that the offence was committed for the purposes of treating or alleviating the symptoms of a medical condition suffered by any other person, and it is in the interests of justice to make the declaration.

This is an extremely important provision because, as currently framed, the bill would not only cover those who supply cannabis oil, it would also cover parents or caregivers who administer it to their sick children. Let's cast our minds back to the stories that were aired on this issue on 60 Minutes and Today Tonight some weeks ago and consider what position parents like Sally White, mum to baby Zahlia who has Aicardi syndrome, or Jaylene Siery and Peter Rule, mum and dad to two year old Larisa who has cerebral palsy, three forms of epilepsy, partial blindness and partial deafness, would find themselves in if this bill passed in its current form. The consequences could be absolutely devastating.

Section 33F of the Controlled Substances Act 1984 provides that a person who sells, supplies or administers a controlled drug to a child or has possession of a controlled drug intending to sell, supply or administer the drug to a child, is guilty of an offence punishable by $1 million or imprisonment for life or both. Because it involves children, it is an aggravated offence and the defendant does not have the benefit of the rebuttable presumption that applies to similar offences involving adults. In ordinary circumstances, nobody would question the severity of the punishment. However, in this case, it is important to note that the definition of a controlled drug includes cannabis oil.

Not only would parents run the risk of prosecution, under this bill they would also risk losing all of their assets if convicted of administering cannabis oil to their child. Some of you may argue that this would only apply in instances where the parents had in their possession vast amounts of cannabis oil. That, too, is not the case. The Controlled Substances Regulations provide that a trafficable amount of cannabis oil equates to 25 grams, a commercial amount of pure cannabis oil equates to 1 kilo, and a large commercial amount of pure cannabis oil equates to 2 kilos.

Given how difficult it appears to be to get your hands on cannabis oil, it is not inconceivable that parents would be buying it in these sorts of large quantities if the opportunity presented itself. We need to bear in mind also that for commercial quantities there only needs to be one conviction offence for this bill to kick into operation. If a parent is convicted on three separate occasions of possessing as little as 25 grams of cannabis oil, they would be in the exact same position. It is a huge risk that parents face but, as I said during the second reading debate, there are parents who are living this impossible dilemma.

They are risking prosecution to ensure that their child receives the only form of treatment that appears to help. The jury may still be out on whether this form of treatment is appropriate, and our legislation certainly indicates that it is not appropriate, but for these parents there are no other options. They are willing to sacrifice just about anything to ensure that their children do not suffer agonising pain.

Turning now to the question of those who supply the cannabis oil to the parents in the first place, the question we have to consider is whether they too should have the benefit of the exercise of discretionary powers by the court. The amendments will enable a court to take into account all of the circumstances surrounding the nature of the supply and the conviction itself and make a decision accordingly.

It is important to bear in mind that, in the case of suppliers and parents alike, if the court is not satisfied that the cannabis oil was being supplied or administered on genuine medical grounds, it can refuse to exercise its discretion. The courts are best placed to make these determinations, and we should give them the flexibility to do so.

I am all for a zero tolerance approach towards the Mr Bigs of this world for their part in the manufacturing and supply of drugs that wreak havoc on our communities. These amendments do not detract from that, and the parents of sick kids, who are at their wits end, or ill patients who are crippled with pain, are not the drug peddlers that we need to be making an example of. With that, I urge all honourable members to support this amendment.

The Hon. G.E. GAGO: The government rises to oppose this particular amendment. It is a bit of a test clause really for further amendments. Basically, this amendment simply wants to delete the word 'would' and substitute it with 'could'. Given that we oppose the further amendments relating to the ability to be able to exempt cannabis oil, of course our position is that we do not believe cannabis oil should be exempted; therefore, if we accept the substitution word 'could', that would give the discretionary power for future exemption. On those grounds, we oppose this particular amendment.

Generally, in terms of the issue of the exemption of cannabis oil, I might as well put on the record now that we are obviously mindful that public debate is occurring around medicinal cannabis. However, it is the government's position that such debate should occur through the front door, not the backdoor. Any debate regarding the use or possession of medicinal cannabis should be had in the context of whether it should be legalised, and amendments to this bill are not the place to further that particular debate.

The Hon. M.C. PARNELL: The Greens will be supporting the Hon. John Darley's amendment, and we congratulate him for attempting to make what is a very bad bill slightly more palatable. Certainly, the stories that the honourable member talked about need to evoke compassion in us in terms of the suffering that people are going through, and to impose additional criminal sanctions on these parents is abhorrent.

We will certainly be supporting the amendment, and we will be supporting a range of other amendments as we go through the debate, but I just want to put clearly on the record now that, whilst we might be supporting amendments to make a bad bill better, we will be opposing the entire bill even if all the amendments pass, because we think, on the whole, the bill is irredeemable and is based on a false premise. I acknowledge the work of the Hon. John Darley. He has made an effort to improve the bill, and we will be supporting the amendment.

The Hon. R.L. BROKENSHIRE: I will just put Family First's position to the committee; that is, whilst I can understand what the Hon. Mr Darley is trying to do, Family First strongly supports the government's intent here. I think the minister has highlighted exactly the reasons why we would need to stay with the government on this particular amendment.

The Hon. S.G. WADE: The state Liberals would want the use of cannabis oil dealt with as part of a broader review of the use of cannabis for medicinal purposes so, for that reason, we will not be supporting Mr Darley's amendment. We agree with Mr Darley and the government that this should be treated as a test clause for related amendments, and we will also not be supporting those.

Amendment negatived; clause passed.

Clause 6.

The Hon. R.L. BROKENSHIRE: I move:

Amendment No 1 [Hood–1]—

Page 4, lines 10 to 12 [clause 6, inserted section 6A(1)(b)]—Delete:

'within a period of 10 years, not including any period during which the person was in government custody'

This is an amendment that was discussed in detail with the Hon. Dennis Hood. The government's bill allows the confiscation of assets for offenders who have been convicted of three prescribed drug offences within a 10-year period. The amendment that we are putting up removes the 10-year period, effectively meaning that a person convicted of a serious drug offence three times or more over any time period would qualify as a prescribed drug offender and therefore could have their assets confiscated.

We recognise the significant impact that drugs and drug offences have on our society, and I would say that we are on a slippery slope when it comes to the amount of illicit drugs already in the community. Statistics on drug crimes such as those intended to be covered by this bill have increased in the last five years. We commend the government for trying to come down tough on this, for obvious reasons, but there is every likelihood that high-end drug offenders making a living out of this trade have significant accumulated wealth, not only from the offences for which they are being convicted, but also from other offences that have not been detected.

Additionally, any legal income, or so-called legal income, would become mixed with that of the illegal enterprise, making it next to impossible to determine which assets have been purchased by legitimate and legal means and which have not. Accordingly, we believe that anyone who repeatedly offends should be subject to these measures and the money put into drug rehabilitation. I commend the amendment to the house.

The Hon. G.E. GAGO: The government rises to oppose this amendment. These are linked with some other amendments under the Hon. Mr Hood's name. I suspect all of them are together, and we are obviously not prepared to support any of them. The Hon. Mr Hood's amendment has the effect of removing the idea that a person becomes a prescribed drug offender if he or she has multiple convictions of the specific kind within 10 years, not counting any period spent in custody. Instead, the person falls into a class if they have multiple convictions in any space or period of time.

This is even tougher than the government's proposal. For that reason we are not supporting that proposal. The government is trying to strike a balance here. Obviously, Family First thinks that we are not tough enough, whereas many think that we are being way too tough. We believe our position is fairly in the middle and we think it is about right, so for those reasons we are not supporting the amendment.

The Hon. M.C. PARNELL: The Greens will certainly be opposing this amendment. It makes a bad bill worse. Let's just think through what the implications of the honourable member's amendment is. Deleting the time period, but also deleting the reference to periods during which a person was in government custody, has the effect that you could have a person, let us say it is dad, who is convicted of serious drug offences and is in gaol. His kids are living, perhaps by themselves, in the family home. We know the gaols are full of drugs. He is found guilty of more drug offences in gaol, so the kids get a knock on the door saying, 'Your dad has been a naughty boy in gaol. We are now taking the house.'

What an outrageous situation. The government's bill is outrageous to start with, but this makes it even worse. I know there is a bit of a race to the bottom of who can be the toughest on crime, but I think that the direction we are heading in with this legislation is absolutely appalling. It trashes every legal sentencing principle involving the punishment fitting the crime and proportionality, so the Greens will not be supporting this amendment.

Amendment negatived.

The CHAIR: The Hon. Mr Darley will not be moving any amendments to clause 6; nor will Mr Hood move his further amendments.

Clause passed.

Progress reported; committee to sit again.

At 18:32 the council adjourned until Wednesday 29 October 2014 at 11:00.