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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

Committee Stage

In committee.

(Continued from 9 September 2009. Page 3858.)

Clause 2 passed.

Clause 3.

Ms CHAPMAN: I move:

Page 4, after line 11 [clause 3(1)]—Insert:

DPP means the Director of Public Prosecutions and includes a person acting in the position of

This amendment proposes to insert the Director of Public Prosecutions as the person who undertakes the assessment under the provisions of the unexplained wealth bill which may result in an application being made to the court for the appropriate unexplained wealth order to be made.

This is one of the ways in which it is proposed to have a trigger to an application being made in the court, and the government's proposal is that this trigger would be by the Crown Solicitor and that he or she would undertake this responsibility in this legislation. The opposition has already indicated that we support the bill in principle.

It seemed rather curious to us that the Crown Solicitor would be the body to undertake this assessment, because it did not appear to be operating in other jurisdictions. We had a good look at the Western Australian model, which has been operating since 2000, the bill having been debated back in 1999 under the Court government. It utilised the Director of Public Prosecutions as the appropriate person to receive the police information, conduct the assessment and make the application.

This is important to consider. It may seem rather insignificant in itself. They are both competent people who could undertake this role in the sense of experience, but we note that this is quite an unusual piece of legislation in that we are reversing the onus from the person who may be the subject of one of these orders to prove how they might have acquired their wealth rather than the usual proving of it by the applicant.

We are giving the trigger to someone who has only to 'reasonably suspect' that the person has not lawfully acquired the wealth they have. So, it is unique legislation in that we are reversing the onus of proof. We are providing a power to someone who can make a decision that is unreviewable and, ultimately, an order can be made only by the court. It is appealable, but it is unique.

We looked at the Western Australian system. Interestingly, again in this case, we acquired some profile of what cases had occurred in Western Australia in the preparation for this hearing. In fact, I had even sought some information on what had been happening in South Australia in the past few years since we passed the original legislation which has a baseline of requiring conviction and various other qualifications but which certainly does not go as far as the declaration procedure for the purposes of identifying a debt and then enforcing the debt recovery as in this wave.

I was disappointed that we have not received any of that information since the briefing. I hope that the principal act has been successful in that applications have been made for the confiscation of assets. That is in our first wave of legislation which the parliament supported the government in progressing. My understanding on these matters is that, where confiscation legislation has been introduced, applications for confiscation are made quite often, resulting in there being no challenge by the owner or holder of the goods in question. I think the theory is that they do not want to have to line up to try to fight for assets and provide an opportunity for enforcement authorities to question them and put themselves at risk of any disclosure of activity. Therefore they simply walk away; they let the goods be forfeited, as such, and do not challenge it.

So the success of this in other jurisdictions, in the sense of recovering valuable assets that can then be sold and which are essentially forfeited to the Crown, means millions of dollars can be recovered in this manner without too much objection. They may not be very happy to have their assets confiscated, but they do not seem to squeal very loudly. That is my understanding.

I hope that there has been at least some effectiveness in the legislation passed a few years ago. As I said, we are disappointed that we have not had any feedback on that. Similarly, at the briefing we sought some summary of what has happened in Western Australia in the past 10 years. It was at the forefront in introducing unexplained wealth provisions in its legislation, and the understanding we had was that information would be sought and, unless there was any objection to it being released to us, it would be provided. However, not one piece of information has been forwarded to us in that regard, and we are disappointed not to have received that.

I would have been the first to endorse even further the importance of the government bringing in this legislation if it had been effective. I would probably have had a bit of a quip at it for not introducing it a number of years ago when we suggested the government do it; nevertheless, the government would have had the credit for introducing it.

The Hon. M.J. Atkinson interjecting:

Ms CHAPMAN: I remind the Attorney that, notwithstanding the fact that he thinks the Law Society is some wholly-owned subsidiary of or welded onto the Liberal Party, in this instance the Law Society put forward extensive submissions regarding why this legislation was risky and transcended the usual protections to individuals. Some of the concerns raised were certainly meritorious but, on balance, the opposition has not accepted them as being sufficient to outweigh what we think will be an important tool in the armoury—I think 'toolbox' is the Attorney's new word—to fight organised crime.

The opposition has indicated that it will support the bill. It believes that the DPP is the most appropriate person. If the government were to put something persuasive in response on this, then we would be happy to hear from the Attorney-General as to why it should be the Crown Solicitor. Otherwise, the opposition asks the committee to accept this amendment.

Mr HANNA: I would like to explain why I will support the opposition amendments in relation to this legislation. Of the various pieces of legislation that the government has brought forward to shift the balance of individual rights towards the rights of the state to investigate and prosecute, this is probably the most far-reaching. The notion that a public servant can nominate someone to explain their wealth and, if the appropriate court order is obtained, then for that person to be required to prove how they obtained their assets, is a very heavy imposition on an individual citizen in South Australia.

We will get to the most significant clause—clause 9—a little later but, at the very least, I think it would be appropriate for the DPP to be the person, if there must be one, rather than the Crown Solicitor. I have listened to the Attorney-General so far in relation to this matter. I cannot understand why the DPP would not have been chosen as the appropriate person for this purpose. I support the amendment which effectively creates a definition of DPP; that is a formality and a precursor to the other Liberal opposition amendments which replace the role of the Crown Solicitor in this bill with the DPP.

The Hon. M.J. ATKINSON: I am interested to hear the member for Mitchell say that he would not want to put a public servant in the position of asking a member of the public to explain his or her income or assets. I wonder whether he has ever heard of the Commissioner of Taxation.

Mr Hanna: You can't appoint the Commissioner of Taxation.

The Hon. M.J. ATKINSON: No, the federal government appoints the Commissioner of Taxation. We just appoint state public servants.

Mr Hanna: That's what I am afraid of.

The Hon. M.J. ATKINSON: That is not the point I am making. The government takes the view that it is the Crown Solicitor rather than the Director of Public Prosecutions who should be the gatekeeper. The reason is simple. When commencing a civil action it is vital to have the favourable opinion of the plaintiff's solicitor because this is straightforwardly a civil action.

There is no necessary connection to criminal proceedings. Criminal Assets Confiscation Act 2005 proceedings, while civil in terms of onus of proof, are proceedings that involve assets that are crime related. This is not so with unexplained wealth. It does not matter whether or not the assets are related; what counts is whether the person who controls the assets can explain whether the assets were lawfully obtained. It is enforced as a civil judgment. Interstate matters would be governed by the commonwealth's Service and Execution of Process Act.

These are not matters with which the DPP is concerned—nor should it be. The government maintains that the position we have taken is the right one. The effect of all these amendments is the same. They were foreshadowed by the honourable member in her second reading contribution. I have given the reasons that we are opposing them. It is quite a deliberate decision that we are taking.

Ms CHAPMAN: The answer from the Attorney-General actually makes me more concerned and starts to persuade me to considerably favourably the member for Mitchell's proposed amendment.

The CHAIR: Order! Could the member for Bragg face the front please.

Ms CHAPMAN: I am sorry; I was trying to gain the attention of one of the members. I certainly have not been persuaded to date that the opposition should support the member for Mitchell's foreshadowed amendment, which would have the effect of significantly restricting the application of this, in summary, to people who have been previously convicted or had assets confiscated. In fact, that very much limits the category.

What we have just heard from the Attorney-General is, 'We're going use the Crown Solicitor because this is just a debt collection matter.' This is not just a debt collection matter. It is true that, ultimately, at the end of the proceedings, the effect of a successful application is that a debt will be created that is recoverable under the legislation that would normally recover debt. That is true, but that is a far different situation from what we will do along the way.

This is not just a question of two people going into a courtroom and one saying, 'His car hit my car first and he owes me an amount of money for damage,' and there being a determination on the balance of probability as to who is right and what payment is made, then recovery of a debt; or a simple situation of saying, 'This person owes me money and here is proof of the purchase and we want to recover the money', a finding is made, a debt is created and we then proceed. No; it is far from that.

This is a procedure which is initiated by several routes, one of which is that the Crown Solicitor—I suppose, arguably, secretly and away from the person who is about to be served with an application for an assessment to be made—collated information and made a judgment, which is unreviewable, as to whether 'reasonably expects', etc.

Once that has occurred, there is a process where the person who is served with these proceedings, if they do not want the debt judgment to be made against them, has to go along and prove all sorts of things. So, this is quite a different procedure that is to occur as we lead up to the creation of a judgment. I would just say that, unfortunately, we are not persuaded. I am disappointed that we did not have some rational explanation that we could have then leapt upon to support the government relating to that, otherwise we are very happy with what the government has put on this bill.

Mr HANNA: The Attorney-General has just given me the impression, with his remarks, that he is not concerned about whether the assets are crime related or not, whether their acquisition was crime related or not, or whether the person is crime related or not. I will check the Hansard. If that is the case then there are going to be a lot of small business owners, who might have more than one set of books, who would have a lot of reasons to fear this legislation.

There would be people who might have won money at gambling who would have reason to fear this legislation. There would be people who have received gifts in the family who have reason to fear this legislation. I would have thought that the whole purpose of the legislation, from what the government has stated about it and from its very structure and design, is to attack criminals and to take from them the illicit proceeds of their criminal activity. I would have thought that was the purpose of it.

So, if the Attorney-General is saying that it is actually much broader than that and it is really to be able to take unexplained wealth off of other citizens, then it is even more far-reaching than I thought.

The Hon. M.J. ATKINSON: The member for Mitchell is right in his interpretation of what I said.

Progress reported; committee to sit again.

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