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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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SERIOUS AND ORGANISED CRIME (UNEXPLAINED WEALTH) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 16 July 2009. Page 3623.)

Ms CHAPMAN (Bragg) (20:42): I indicate that the opposition will be supporting this bill—with amendment. The bill was introduced by the Attorney-General on 16 July 2009 to amend the Criminal Assets Confiscation Act 2005. Many members of the house will remember the debate during the introduction of that act, which essentially was to set a new regime for the capacity for law enforcers to confiscate assets accumulated as a result of criminal activity. The act allowed for the proceeds or instruments of crime to be forfeited to the state. However, the key feature of that legislation was that the forfeiture related to proceedings that occurred only where it was shown, on a civil onus of proof, that the person had been convicted of a serious offence or that the person was suspected on reasonable grounds of having committed a serious offence, and that the relevant property was either the proceeds of or an instrument of that crime.

Quite a high threshold applied before there was the capacity for an order to be made to forfeit assets, a conviction made, or suspicion on reasonable grounds, and the property having some connection with the crime. It is relative to what we are considering today. It is narrow in its effect, and, clearly, provided for an attachment to an offence rather than what we are considering now.

We debated his matter in 2005. When that act was debated, then as a bill, we raised with the government the fact that the South Australian jurisdiction was one of the last, after the commonwealth and other jurisdictions, to have a civil forfeiture system with the recovery of criminal assets. It was disappointing for us that the South Australian state government had been so slow to initiate legislation to enable there to be a recovery of this kind. Nevertheless, we supported it.

We outlined at the time that the Court Liberal government, under premier Richard Court, had introduced a criminal property confiscation bill in June 2000—so we are talking, at that stage, some five years before—which included an unexplained wealth provision. At that stage we thought there was some merit in looking at that and that, quite possibly, we would need to consider that as necessary to close the web on those who might acquire assets.

The situation now—some four years later, five years since the introduction of that bill for the current legislation, the principal act which now prevails—is that the government now comes back to the parliament and says, 'Well, we now need to consider what you thought might have been a good idea five years ago.' So, it is disappointing in that sense.

Perhaps the government was right in saying, 'Well, let us introduce this first stage. It is secure. It will have support. It is not out there as far as legislation goes. We are not changing the onus of proof and we are not really going to the edge of what is acceptable in many legal concepts, and we will look at that first and see how it progresses.' But, in the usual way, the government has come back and said, 'Well, we think the act is limited. We now need to look at how we might deal with an expanded group, and that limiting it to proving that the defendant, or some other person, has committed a serious offence, and that the assets were attached to that conduct, is too limited and we need to be able to expand it.'

It is disappointing to note that the government, in coming back to the parliament to say that they need to expand it further, has not provided any information, either to the parliament or in the briefing that was provided to members of this house, as to how successful or otherwise the legislation that we passed back in 2005 has been.

As it had not been detailed in the second reading explanation of the Attorney, as the opposition spokesperson on justice and attorney-general matters I asked at the briefing that certain information be provided, including: how many people had actually been prosecuted under the existing act; how many had been successful; for how many had it been determined that there be an order issued for the confiscation of assets; how many orders had been applied for and had failed, and why; and how many had been suspected of having criminal assets, of which the current law was inadequate to provide for? These are all reasonable questions, I think, to actually ask, as some comparator. The Attorney-General introduced this bill to replicate what the situation is in Western Australia, which has been in effect now for nine years. We ask: well, what is the situation in Western Australia? How many dollars, millions, or otherwise, has been—

The Hon. M.J. Atkinson interjecting:

Ms CHAPMAN: The Attorney-General interjects. I take it that he is mitigating any criticism of why his department has failed to provide any of this information by saying, 'If we gave that to you, you would just ask for some more.'

The Hon. M.J. Atkinson: You'd ask for something else.

Ms CHAPMAN: Yes—something else. That is just completely unacceptable and shows the arrogance of this government. The Attorney-General says that they did not need to give us any of this information when we asked for it in briefings to be satisfied on the progress of the matter. We are told, 'Well, we're not going to give it to you because you might ask for some more.' If that is standard the Attorney-General is going to apply, what is the point in having briefings at all?

I have indicated to the parliament and to the Attorney-General that we have considered this bill, independent of the information we have sought—having looked at the question in Western Australia, having raised this issue in 2005 and having considered the objections by the Law Society and the Bar Association and others to this bill—and we are still prepared to support the government on it.

However, the government is so arrogant that it says, 'We're not going to give you the information you ask for because you might ask for something else.' That is a disgrace and completely undermines the reason we ever have any briefings or place any reliance upon being offered or provided with the information if it is available. I had this briefing some weeks ago, but not one bit of information has been forthcoming.

Of the other bills on which I had briefings in relation to the Attorney-General, I have not had that information either, yet at the same time—in fact, shortly thereafter—I had a briefing from people involved in the development of child protection legislation under minister Rankine's portfolio and that information was provided within a week. There is absolutely no excuse. The Attorney-General grandly offers briefings, where we seek information, but nothing is provided. For the future, we note clearly what the Attorney-General's position is on this.

This legislation will impose, after a certain process (which I will refer to in a moment), an obligation or an onus on a person with unexplained wealth to explain that position. It will reverse the onus of proof, and that is a major change of concept. In general terms, the new regime under this bill provides that the Crown will be authorised to apply to the court for a declaration that the person, including the incorporated body, has unexplained wealth. If the value of the approved wealth, calculated in accordance with the legislation, exceeds the lawfully obtained wealth, any wealth that cannot be explained will be assessed and form the basis of a civil judgment debt due from the defendant to the government.

It is important to note that this is not confiscation of a suspect's assets. This formula will apply if the assessment by the court is such that there is a difference between what they have and what they should have. That will create a debt, and it will be a debt recoverable the same as any other judgment debt. For the purposes of defining it under this legislation, 'wealth' relates to everything a person has ever owned or controlled, whether before or after the act came into force. So, it is extensive.

Key features of the bill are, essentially, as follows. The process will usually begin with an application for a restraining order of up to 21 days, unless an application for the unexplained wealth order is made. A preliminary protection process is proposed. The key safeguard is that the court may refuse if the crown makes no appropriate undertaking for payment of damages or costs or both, should the target satisfactorily explain his or her wealth. In other words, this is a mechanism which sends a very clear notice to the Crown that it may not even get past first base unless it is prepared to give an undertaking. This is consistent with most civil actions in which someone's liberty or control of assets is placed under an injunctive type order, upon which the court usually requires the applicant to give an undertaking. It is consistent with that usual process.

Police are to be given investigative powers and may issue a notice to a deposit holder to provide information on accounts and report certain transactions. The Commissioner of Police may apply for an order to give evidence and for a warrant authorising search and seizure. The powers can only be used against those convicted of or found liable to supervision for a serious offence, those subject to a control order under the Serious and Organised Crime (Control) Act 2008, or those whom the Crown Solicitor has reasonable grounds to suspect have engaged in serious criminal activity, associate with those who engage or have engaged in serious criminal activity, are a member of a declared organisation or who have acquired property as a gift from the deceased estate of some person.

It is quite extensive in the sense of those who may be caught in this web. I will have a little to say about the role of the Crown Solicitor, but clearly the power of the Crown Solicitor to make this assessment on reasonable grounds is not reviewable by any court. It is claimed in the Attorney-General's second reading explanation that this is unnecessary, because there are other mechanisms in the application procedure before the court which protect it.

There is no criminal threshold of proof for making the application. It only requires the Crown Solicitor to 'reasonably suspect'. The legislation effectively deems all private wealth to have been unlawfully acquired once the application has been made. The respondent bears the onus of establishing that his or her wealth has been lawfully obtained. The crown only has to prove that the respondent owns or effectively controls the wealth.

There are manifestly unjust provisions upon which a court may refuse to make an order, and the order is not a confiscation order. As I have indicated, it is an order for the payment of moneys; it is a judgment order only. Where the declaration is made, the respondent is required to pay the judgment amount to the crown, and there are enforceable provisions under the Enforcement of Judgments Act 1991.

There is no obligation on the Crown to establish criminality or link a particular asset to a particular crime, and the ordinary rules of civil procedure apply, including rules of discovery. There is a protection of information clause where it may prejudice criminal investigations, and this formal provision was declared unconstitutional in the High Court case of K Generation Pty Ltd v Liquor Licensing Court (2009) HCA 4. There is more detail of that in the second reading explanation.

Mr Matthew Goode—who, no doubt, has considerable experience in this area and has always been helpful in providing information about how a bill has been structured—attended the briefing and said that this second wave of legislation comes out of the motorcycle gang working group as a result of an extensive list of stakeholders being consulted. We were told that the Chief Justice of the Supreme Court had been advised of the proposed legislation because, obviously, members of the judiciary would be called upon in their court time to consider applications for these declarations, and that would take some time. The opposition was informed that the Chief Justice had responded by declining to comment; that he was concerned about the impact of the cost on the court system, as we would be, as we know—

The Hon. M.J. Atkinson: Not your leader. She wants this.

Ms CHAPMAN: I have indicated that we are supporting it. What is of concern to the Chief Justice (as it is to the opposition and as it ought to be to the Attorney-General) with respect to this obligation once it is law is that its application will obviously take up court time. Every law we pass in here affects someone's life, and it is important to appreciate that usually its implementation or supervision or application or prosecution requires some money. So, it is reasonable for the Chief Justice to say, 'Whatever you churn out down there in Parliament House, we need the resource to make sure that we are covered. If we don't have it, what do you want us to get rid of, Attorney? What do you want us to delay to ensure that we can make provision for it? What should be sacrificed to ensure that we can accommodate this?' These are reasonable questions and, as members of this parliament, we would expect that the Attorney would have some answers for us in this regard.

I hope that in the Attorney's contribution he will explain to the parliament how he will ensure that others who are waiting for civil and criminal cases in our state courts will not be prejudiced as a result of this proposed extra legislation. Perhaps when he does provide the parliament with this information and enlighten us, he will also provide us with the information we sought at the briefing as to what has happened in the last five years and how the current legislation under the principal act has applied and whether it has been successful and useful. I hope that it has. We supported it at the time in the expectation that it would add at least one level of armoury to the war against those who are undertaking criminal activity, and we would like to have some feedback in that regard.

The opposition has considered the Western Australian act, and we understand that it is the Director of Public Prosecutions (DPP) who has the responsibility under the act to make an assessment and, where appropriate, apply to have a declaration or an order made for someone to be liable for the assessment, and not the Crown Solicitor, as has been proposed in this bill.

I foreshadow an amendment that will make provision for the DPP to have that role. It is not because our current Director of Public Prosecutions is an ex-Western Australian; not at all. We are still left without the information. However, it does seem unusual to us on this side of the house that the Crown Solicitor would become involved in this type of assessment, and that it would ordinarily be in the realm of the Director of Public Prosecutions.

However, there may be some good reason. There may be some other jurisdiction that applies this and invokes the Crown Solicitor or their equivalent to undertake this role in other states, and it might have worked and it may be more efficient and more cost effective. We do not know the answer to that, but I foreshadow that we will be moving an amendment for the DPP to be the responsible party who, in an unreviewable way, can make an assessment as to whether an application would be lodged.

The DPP already has a role in making a determination in individual cases as to whether it is appropriate to prosecute a case. So, they are experienced in making these assessments. They are clearly well trained and understand the procedure. On that basis, it would seem to be appropriate, at least to the opposition, in the absence of any other information provided, that the Crown Solicitor provision be deleted and replaced with the DPP.

I have also received from the member for Mitchell an indication that there be a significant restriction on who the Crown Solicitor may apply to for consideration and, in particular, to restrict it only to persons who have either previously forfeited proceeds of an offence or against whom a confiscation order has previously been made. That, in effect, would restrict this to someone who had already had a conviction and that, in the opposition's view, would unreasonably restrict the purpose of this bill and effectively make only a minor adjustment to those who previously had their assets confiscated. It would simply mean that you could have assessment and recovery for people who had prior form.

The Law Society and, in particular, the Bar Association have raised concerns principally about two things: first, the reversal of the onus of proof. This is always potentially a dangerous thing but one which, in certain circumstances, has been accepted. It is not without precedent in this house that we pass legislation where there has been a reversal of onus. The opposition is always cautious in considering whether that is appropriate or necessary and, in this instance, has accepted that that is reasonable.

The second area of concern is that it be effective for persons who are assessed under some reasonable suspect category rather than a conviction and, obviously, this does considerably expand the likely application if this legislation is passed. Careful consideration has been given to that as well but, on balance, it is the opposition's view that the government should be supported on this initiative.

We would hope that the government shows some level of goodwill, notwithstanding the Attorney's petulant statement earlier in this debate in which he suggested that they will not provide information to us because we are only going to ask for something else. That really is unconscionable, and we would hope that the Attorney understands the importance of ensuring that parliamentary members are given information to assist when good law is presented and should be reasonably considered, supported and passed, which the opposition is prepared to do. We are prepared to do that on this occasion, but we expect some level of mutual respect in that process.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Progress reported; committee to sit again.

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