Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill

Committee Stage

In committee.

Clause 1.

The Hon. A.L. McLACHLAN: I would like to make a few comments and set out the Liberal Party's position in relation to the amendment, as well as those of the Hon. Mr Darley. The Liberal Party's position was obviously set out at the second reading.

We understand that there are compelling social reasons for acting against serious criminals and the drug trade, and the Liberal Party agrees that it is important to deprive criminals of the benefits from engaging in crime, which assists to incapacitate and disrupt criminal activity by targeting their economic base and eradicating working capital. That is why the Liberal Party is supporting these legislative amendments. However, any regime must be targeted and not be indiscriminate. We are concerned, as a party, that these amendments will produce legislation that may have unintended consequences for innocent third parties and we have drafted our amendments from this perspective.

There are already comprehensive laws in place for the forfeiture of property. One question we would ask the government as a matter of courtesy at clause 1 is: how many applications have been made under the extant act, the Criminal Assets Confiscation Act, since its inception, and broken down by year? We do not see the government's amendments as necessarily advancing the forfeiture regime, thus the nature of our question. Nevertheless, as I have indicated, we will support the government bill and seek some technical amendments.

It is our view that we must weigh up the social benefits of confiscation with the implications on third parties, including those related to the defendants, who may well be blameless. We must always remind ourselves that the provisions of this act, and the bill that seeks to amend, effectively impose an additional punishment when there is no specific allegation of wrongdoing in relation to that property. Nothing must be proved. There are specific provisions that provide for confiscation. That cannot mean that the assets confiscated cannot be considered part of a person's sentence for a particular crime.

In essence, academics have argued that it is almost a form of taxation. It has also been argued that this approach is not consistent with longstanding legal traditions in this state or, indeed, the country. The Attorney-General has written to the Liberal Party in relation to its amendments and has advised that he does not support the amendments. We do not find the reasons for his lack of support, other than in relation to providing a review—the proposed report to parliament is also opposed, I should clarify—we do not find the reasons stated particularly persuasive and we will be continuing to pursue our amendments.

As to the Liberal Party amendments standing in my name, I point out to members of the council that my amendments Nos 1, 2, 3 and part of 4 (the insertion of a new clause 26—Review of Act), are identical to those amendments put forward by the Hon. Mr Darley. Mr Darley is also seeking additional amendments, in particular in relation to cannabis oil. By way of clarification to the chamber, whilst I will not be withdrawing amendment Nos 1, 2 and 3, we will be supporting the identical amendments as put forward by Mr Darley. Our reason for doing so is that these are longstanding views of Mr Darley's and we, as a matter of courtesy and respect to Mr Darley, are supporting the identical amendments as put forward and moved by him.

That means that when we come to amendment No. 4 standing in my name, we will be seeking that the particular provisions sought to be inserted (that is, 229A, 229B) be separately put to the chamber, as I understand that some members of the crossbenches wish to vote independently on each of those sections. Can I also indicate that the Liberal Party will not be supporting the remainder of Mr Darley's amendments, particularly those concerning cannabis oil. We have expressed, as a party, some support for trials in relation to cannabis oil and the party will use the outcomes of those trials, particularly from interstate, to inform its view. On that, I will conclude my remarks at clause 1.

The Hon. M.C. PARNELL: Just for the benefit of the house I will put the Greens' position on all of these issues to help us get through this. No surprise to members that we are opposing the bill. We take the same position on this as the Law Society. They say it is unjust and unfair and ought not pass and that is the position that we have taken.

However, again, a typical approach that the Greens take is that even if there is a bill that we do not believe should pass, if amendments are before the house that make it less offensive we will support those amendments. So we will be supporting the amendments to be moved by the Hon. Andrew McLachlan, and we will be supporting all of the amendments of the Hon. John Darley, including the ones that the opposition are not supporting. We will be supporting all of the amendments but I just want to say for the record that regardless of the fate of those amendments, we will be opposing the whole bill.

The Hon. J.A. DARLEY: In respect of the Hon. Mr McLachlan's amendment No. 4, I can indicate that I will be supporting those parts that deal with confiscation guidelines and annual reporting but I will not be supporting the additional appeal provisions—but I do support splitting the amendment.

The Hon. G.E. GAGO: In response to the Hon. Andrew McLachlan's question about the number of applications for confiscation, I am advised that there is currently a review being undertaken that will look into this and we will have to take it on notice and bring that figure back.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

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

Amendment No 1 [Darley–1]—

Page 3, line 30 [clause 5(5), inserted paragraph (d)]—Delete 'would' and substitute 'could'

Members will no doubt be aware by now that amendment No. 1 intends to mirror those moved during the previous debate on this bill in the last session of parliament. Amendment No. 1 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.

At the risk of repeating what I have said on this issue previously, the amendments will enable a court to take into account all of the circumstances surrounding the nature of the supply and the conviction itself. Where the court is not satisfied that genuine medical grounds exist, it can refuse to exercise its discretion. The point is that the courts are best placed to make these determinations and we should give them the flexibility to do so.

As I have said previously, 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. 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 amendment and to use this as a test clause for a number of other 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 and, on those grounds, we oppose this particular amendment.

Generally, in terms of the issue of the exemption of cannabis oil, I would want to put on the record that we are mindful that the public debate is occurring around medicinal cannabis. It is a complex issue. However, it is the government's position that such debate should occur through the front door not the back door. Any debate regarding the use or possession of medicinal cannabis should be carefully considered and had in the context of whether it should be legalised, and amendments to this bill are neither the time nor the place to further that particular debate.

The Hon. A.L. McLACHLAN: I indicate to the chamber that we will be joining the government in opposing that amendment.

Amendment negatived; clause passed.

Clause 6.

The ACTING CHAIR (Hon. J.S.L. Dawkins): We now move to Amendment No. 2 [Darley 1] which is clause 6, page 4, line 4.

The Hon. J.A. DARLEY: This is a consequential amendment.

The ACTING CHAIR (Hon. J.S.L. Dawkins): Further into clause 6, we have Amendment No. 3 [Darley 1]. Are you happy that that is consequential?

The Hon. J.A. DARLEY: Yes.

Clause passed.

The ACTING CHAIR (Hon. J.S.L. Dawkins): We will deal with clauses 7 and 8 first: is it agreed they are consequential?

The Hon. J.A. DARLEY: Yes.

Clauses 7 to 19 passed.

Clause 20.

The ACTING CHAIR (Hon. J.S.L. Dawkins): We have Amendment No. 1 [McLachlan 1].

The Hon. A.L. McLACHLAN: As indicated in clause 1, this is identical to the Hon. Mr Darley's No. 7 and, out of courtesy to him, I will not be moving this and I am allowing the Hon. Mr Darley to move his Amendment No. 7.

The ACTING CHAIR (Hon. J.S.L. Dawkins): It is an indication of opposition. You do not have to move it. You are opposing the clause; is that right?

The Hon. J.A. DARLEY: Yes.

The Hon. G.E. GAGO: I will speak to this because this is a slightly different issue. The government rises to oppose the Hon. Mr Darley's Amendment No. 7. The honourable member proposes to oppose clauses 20 and 22 of the bill and to amend clause 21 to remove the justice resources fund proposed by the government because of some belief that the victims will lose.

The Attorney-General has made it clear in another place that victims will not lose from these funds because they simply never had them. This bill will raise new money which never went to the Victims of Crime Fund and which can be used to fund a number of very worthwhile and valuable initiatives, including programs and facilities for dealing with drug and alcohol-related crime. It is unhelpful and prescriptive to seek to dictate the use of any funds forfeited under the bill, as these amendments seek to do. The government opposes this amendment and the related amendments proposed by the honourable member.

Clause negatived.

Clause 21.

The ACTING CHAIR (Hon. J.S.L. Dawkins): We move to clause 21 [McLachlan-1] 2, which is in the same vein, and the Hon. Mr Darley can speak if he wishes.

The Hon. A.L. McLACHLAN: It is identical. I move:

Amendment No 2 [McLachlan–1]—

Page 9, lines 29 to 31—Delete clause 21 and substitute:

21—Amendment of section 209—Credits to the Victims of Crime Fund

(1) Section 209(1)—after 'Subject to' insert:

subsection (1a) and

(2) Section 209—after subsection (1) insert:

(1a) 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 for the preceding financial 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).

The Hon. J.A. DARLEY: At the outset, I would like to thank the Hon. Andrew McLachlan and the Hon. Stephen Wade on behalf of the opposition for their party's support on this very important amendment, and I commend the opposition for their very strong stance on the rights of victims with respect to this bill. Members will note that the Hon. Andrew McLachlan and I have identical amendments when it comes to ensuring that the proceeds of assets seized go towards victims of crime and drug rehabilitation.

Once again, for the record, I do not support the government's proposal to establish a new fund that would see money diverted away from the Victims of Crime Fund. I also maintain my position that more money needs to be directed towards appropriate drug rehabilitation programs. During the previous debate on this issue I made a lengthy contribution about the lack of adequate funding towards such programs. I will not repeat what I have said on the record previously, other than to say that, if we are serious about tackling the drugs issue, then this needs to be approached holistically and backed by good policy. If we are going to go down the path of seizing assets, irrespective of how they are obtained, then let's ensure that the funds from those assets go towards something worthwhile.

We are in the grip of a drug pandemic in this country, particularly when it comes to methamphetamines and ice in particular. The sooner this government realises that we need to tackle this issue with effective drug rehabilitation the better. The government needs to put its money where its mouth is and get cracking on some meaningful reforms. I am willing to hold this bill up for as long as possible if that is what it takes to get the government's attention. With that, I urge honourable members to support this amendment.

Amendment carried; clause as amended passed.

Clause 22.

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

Amendment No 9 [Darley–1]—

Clause 22—This clause will be opposed

Clause negatived.

Clause 23 passed.

New clauses 24 and 25.

The Hon. A.L. McLACHLAN: I move:

Amendment No 4 [McLachlan–1]—

New clauses, page 11, after line 4—After clause 23 insert:

24—Amendment of section 226—Appeals

Section 226—after subsection (3) insert:

(3a) On an appeal under this section the court may discharge or vary the order if satisfied that it is in the interests of justice to do so (and may do so regardless of whether this Act authorised or required the order to be made).

25—Insertion of sections 229A and 229B

After section 229 insert:

229A—Confiscation guidelines relating to prescribed drug offenders

Property may not be the subject of an application under this Act on the basis that the property is owned by or subject to the effective control of—

(a) a prescribed drug offender; or

(b) a person who has been charged with, or is suspected on reasonable grounds of having committed, an offence that will, if he or she is convicted of the offence, result in him or her becoming a prescribed drug offender,

unless the DPP has published in the Gazette guidelines setting out policies applied by the DPP in relation to the making of such applications.

229B—Annual report relating to prescribed drug offenders

(1) The Attorney-General must, on or before 30 September in each year, lay before both Houses of Parliament a report on the operation of the amendments enacted by the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Act 2015 during the financial year ending on the preceding 30 June.

(2) A report under this section must include the following information for the financial year to which the report relates:

(a) the number of restraining orders and forfeiture orders made in relation to property owned by, or subject to the effective control of—

(i) prescribed drug offenders; and

(ii) persons who have been charged with, or are suspected on reasonable grounds of having committed, an offence that will, if the person is convicted of the offence, result in him or her becoming a prescribed drug offender;

(b) details of property forfeited under this Act that was, immediately before such forfeiture, owned by, or subject to the effective control of, a prescribed drug offender.

(3) A report required under this section may be incorporated into any other report required to be laid before both Houses of Parliament by the Attorney-General.

This amendment seeks to insert a number of clauses. Even though it comes under one amendment, I would ask that each section, if possible, could be put to the chamber. The proposed insertion of clause 24 regards a general appeal and, as outlined at the second reading, we believe that this provides added protection for unintended consequences where assets may be confiscated or forfeited and there needs to be a judicial oversight in exceptional circumstances.

We are also seeking to insert section 229A, which relates to guidelines to be provided in relation to the application of these amendments. As I have indicated, we have the support of the Hon. Mr Darley and certain members of the crossbenches. Then we have section 229B. It is our view that an annual report should be prepared. We are particularly mindful of certain committee work in relation to this space, one of which I am a member of and that is the Crime and Public Integrity Committee.

We are also seeking to insert clause 26—Review of the Act, but we will not be moving that, because that is identical to Mr Darley's amendment, which we will be supporting.

The Hon. M.C. PARNELL: I will speak to the first part, because we are going to vote on them separately. This, as I understand it, is a live issue, because I think the Hon. Mr Darley said that he would not be supporting the insertion of the new clause 24. I just want to briefly say why the Greens do support the insertion of that clause.

At the heart of this, even though, as I have said, we are against the entire legislation, this is one of the most important of the provisions that make a bad law better. It basically provides that an appeal can be made against the order, but the ability of the court to vary or discharge an order is limited to a particular set of circumstances, and that is that the interests of justice require it

You just have to think through: if we do not support this clause, what we are effectively saying is that we do not care about justice. The only reason that an appeal would be successful is if the interests of justice require it. Unless you put a clause in saying, yes, justice is an important consideration, it ties the hands of the courts; in fact, it does not even allow the courts to consider the matter. So by definition we are entrenching an unjust situation.

The example that I have given before would be mum or dad the drug dealer is sent to gaol for a very long period of time. Their children remain in the house. Under this legislation, the government takes the house. The government makes the children of the drug dealers homeless. What a brilliant situation for improving social situations of people who have already suffered having their parents locked up, presumably for a very long period of time in gaol.

That is the sort of example I would have thought, under an appeal, would go to the court. The court, if satisfied that in the interests of justice to do so it should discharge or vary the order, can make that decision. It seems to me entirely unremarkable in a fairly draconian piece of legislation like this that you would at least have a reference to the interests of justice. If this gets in it will be the only reference in the entire legislation to the interests of justice, so I think it is very important that the proposed new clause 24 be inserted into the bill.

The Hon. G.E. GAGO: The government rises to oppose the bulk of this amendment which seeks to insert three new clauses, and I will just deal with the first section. The first part of this amendment seeks to insert a new section in the act, namely section 226(3a), that would amend that part of the act that deals with appeals.

The effect of this amendment is very wideranging. It is not confined to an order made under the bill. It applies to any order many under the act. The effect of the amendment is to give a court on appeal a discretion completely unstructured except for the vague notion of the interests of justice and the court may do so regardless of whether this act authorised or required the order to be made. This amendment places the discretion in the constitutionally correct place—the court.

But there is otherwise little else to commend this amendment. It comes to this: basically not only in the case of a prescribed drug offender under the bill, but in the case of any confiscation order including confiscation of the proceeds of crime, pecuniary penalty orders or literary proceeds orders, any order required or justified by the law may be set at nought on the basis that a judge thinks it is just to do so. Such an amendment is practically unworkable and drives a coach and horses through not just this bill but through the entire Criminal Assets Confiscation Act 2005. This amendment renders the whole act, not just the present bill, completely unnecessary. It could be replaced by this one section.

It would also place South Australia at odds with any idea of a cooperative national confiscation of assets scheme and interlocking legislation designed to attach directly to the profits of crime. There is already an express power of appeal against any order made under the bill in section 226 of the Criminal Assets Confiscation Act. The position of innocent third parties has been raised. The Criminal Assets Confiscation Act already has protections and powers of appeal for third parties whose interests are offended under the act.

The Hon. M.C. PARNELL: I have a very quick response to what the minister has said. Whilst I would not put words into her mouth, what I heard was that this government insists on being able to make unjust decisions. It insists on being able to make decisions that go against the interests of justice and I find that a remarkable position. The minister is correct. She says that the government does not want these decisions to be challenged. She acknowledges that if there is to be challenges, the courts are the place to do it.

It seems to be me that, when we are looking at something so draconian, to allow a court in the interests of justice to make a different decision to that of the government is absolutely appropriate. It does not say that a decision is any more or less likely. The minister describes the consideration as vague. The interests of justice is what our courts do best. They weigh up all the circumstances and they act in the interests of justice. That is why this clause does need to be inserted.

The Hon. A.L. McLACHLAN: Can I just endorse those comments by the Hon. Mr Parnell. The Liberal Party has a longstanding tradition of supporting judicial review of decisions of the executive, and the insertion of this clause allows a very draconian piece of legislation almost a fuse to it in a sense to allow the courts to review decisions and outcomes which would, I suspect, offend the average person on the street. It is probably not the most technical test, but it is a test that I think would allow this legislation to survive longer rather than, in essence, aggravate the people of South Australia which it is supposedly designed to serve.

I have a longstanding personal view that all legislation like this should have opportunities for the individual to seek wide-ranging review of decisions, particularly of this nature because this bill, in essence, breaks the nexus between property which is used in a criminal offence or the proceeds of crime and basically says that if you are declared—or I think the proper term is 'considered'—a commercial drug dealer or someone doing commercial actions in relation to the drug trade, then all your assets can go—other than those which would otherwise not be taken away from you if you were a bankrupt. That includes family assets, assets that may have been inherited, the whole range. It is because of the draconian nature of that, that we are seeking in this amendment to balance it with a right of appeal.

The Hon. G.E. GAGO: In response to the question asked by the Hon. Mark Parnell, the interests of justice will be upheld by this bill. The bill gives the DPP wide discretion. The High Court has accepted that the DPP will exercise statutory discretion fairly and responsibly like a minister of justice, and that is how the interests of justice will be upheld.

The Hon. B.V. FINNIGAN: If I could just ask the mover of the amendment a question. Is it your position that this amendment creates new rights of appeal or that it broadens the discretion of a court in what it considers in existing rights of appeal? Are you saying that this enlivens a whole new right of appeal process or that it simply ensures that the court must consider, or the court can consider the interests of justice as a ground on which an appeal already provided for in the legislation may be granted?

The Hon. A.L. McLACHLAN: I thank the honourable member for that question. In our view, the purpose of the amendment creates, potentially, a new right of appeal other than the technical ones that are existing in the proposed bill as exists. But it is our understanding that any judge considering this has to consider the legislation as a whole and the intent of the legislation. Really, it is a provision that allows someone in circumstances which we cannot anticipate where there would be gross injustice that it would apply.

The opposition is not suggesting that it would be an easy right of appeal to achieve and, indeed, other provisions of appeal in the existing act may well be appropriate in certain circumstances. So, really it is a right of appeal which is probably inherent in most other acts that exist in the common law in relation to certain other bills no matter what they are, and we are seeking to prevent gross injustice which is cut off by the specified terms of appeal that are in the existing act.

The Hon. M.C. PARNELL: I would make one more observation on that in answer to the honourable member's question. This bill provides brand-new powers for the government to effectively take everything that you own. As a consequence of these brand-new powers, the idea of a specific appeal provision is absolutely appropriate. So, I think it is correct to say that it is a new appeal provision but it is in response to a set of powers that have never existed before.

As I have said previously, the Greens support the proceeds of crime being taken; we support unexplained wealth. This takes it one step further. This is honestly-acquired wealth that is taken. 'Draconian' is the word that has been used—it is—therefore, the ability to go to the court and say that, 'In the interests of justice this is not right' I think is absolutely something that we need to legislate for.

The Hon. A.L. McLACHLAN: Can I just respond to something that the minister raised in her previous response just before the Hon. Mr Finnigan posed his question to me. Whilst we accept that the DPP has certain statutory obligations and we have no reflection on that office, it is not a judicial position; it is subject to a five-year contract.

I am not entirely clear what the employment conditions are, other than it is a statutory appointment, but I suspect it would not be the same terms and conditions of employment that you would expect for a judicial officer, which reinforces permanency and independence. The DPP is regularly appointed on, I think, five-year term rolling contracts. So, while I accept the accuracy of the minister's response, it does not sway the Liberal opposition from its strong advocacy for this right of appeal for South Australians.

The Hon. G.E. GAGO: I do not wish to prolong the debate because I know where the numbers are, but I just want to put on the record that the DPP takes their independent role extremely seriously.

The Hon. A.L. McLACHLAN: I want to reinforce that in my response I was in no way reflecting on the office of the DPP.

New clause 24 inserted.

New sections 229A and 229B agreed to; new clause 25 inserted.

New clause 26.

The Hon. A.L. McLACHLAN: I move:

26—Review of Act

(1) The Attorney-General must, within 3 years after the commencement of this Act, undertake a review of the amendments to the Criminal Assets Confiscation Act 2005 enacted by this Act.

(2) The Attorney-General must cause a report on the outcome of the review to be tabled in both Houses of Parliament within 12 sitting days after its completion.

New clause 26 is identical to the Hon. Mr Darley's amendment No. 10.

The Hon. G.E. GAGO: The government is very pleased to rise to support this amendment. The statutory review of the bill's operation after a period of three years is appropriate, and we are therefore prepared to support it.

New clause inserted.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (16:50): I move:

That this bill be now read a third time.

The Hon. A.L. McLACHLAN (16:50): In committee, as you have reported, I raised a matter regarding information concerning how many applications were made under the act unamended. I do not seek to hold up the progression of the act to the third reading, but I was wondering if the Leader of the Government could undertake to provide that information, if possible, so that it would be available for the other place when they receive the amendments from this chamber.

The Hon. G.E. GAGO: I am happy to seek to do that. I do not know, at this point, what the availability of that information is, but if it is at all possible I will certainly seek to do so.

The Hon. A.L. McLACHLAN: I am prepared to accept that undertaking, if the information is readily available.

Bill read a third time and passed.