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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-09-23 Daily Xml
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SERIOUS AND ORGANISED CRIME (UNEXPLAINED WEALTH) BILL

Committee Stage

In committee (resumed on motion).

(Continued from page 4041.)

Clause 6 passed.

Clause 7.

Mr HANNA: My amendment is consequential, so I will not proceed with it. However, I have a question for the Attorney-General on this clause. My question is really to ask the Attorney to place on the record the process and the term of appointment of the Crown Solicitor.

The Hon. M.J. ATKINSON: I always assume that once the Crown Solicitor is appointed he continues in office indefinitely, but I will take that question on notice.

Ms CHAPMAN: This clause is to make absolutely clear that there is not to be any interference in the discretionary role the Crown Solicitor will undertake and that he or she is to be absolutely independent. Is there any other similar appointment, jurisdiction or role the Crown Solicitor has in which he is specifically legislatively protected against any interference by you or anyone else?

The Hon. M.J. ATKINSON: Not that I am aware of.

Ms CHAPMAN: On the basis of the preparation of this bill, on whose advice did the Attorney-General rely for the inclusion of this clause? Did he receive any advice from the Crown Solicitor?

The Hon. M.J. ATKINSON: I will not be commenting or answering such a question; it is just a vexatious question.

Ms CHAPMAN: Did the Attorney-General receive any advice at all on the inclusion of this novel clause into this legislation, which is purportedly there to quarantine the Crown Solicitor from interference?

The Hon. M.J. ATKINSON: I received advice from parliamentary counsel and from my Legislation and Legal Policy Section. Nevertheless, the clause speaks for itself. If the member for Bragg objects to it I suggest she votes against it.

Ms CHAPMAN: I raise one other matter in relation to this, and that is that as I understand it the appointment of the Crown Solicitor is an appointment by the Attorney-General and, of course, if the Crown Solicitor made some decision, either acting alone or through cabinet I assume the Attorney-General can dismiss him or her. Is that the position?

The Hon. M.J. ATKINSON: The Crown Solicitor's terms of employment will be in his contract.

Ms CHAPMAN: At this stage, we do not have the terms of the contract, nor do we have the act, which I have called for, for the appointment powers. I ask the Attorney: do you alone or with cabinet have the power to dismiss the Crown Solicitor, for whose appointment you are responsible?

The Hon. M.J. ATKINSON: I suppose if the Crown Solicitor lost the confidence of the Attorney-General and the cabinet he would be asked to resign, and his remedies would be under his contract and under normal employment law.

Ms CHAPMAN: Do I assume then that this clause would protect the Crown Solicitor from dismissal by you as Attorney or the cabinet if you were unhappy with a decision that was made to proceed with an application for an unexplained wealth order, in other words, exercising the discretion under this act?

The Hon. M.J. ATKINSON: Usually a solicitor acts on the instructions of his client. I am, and the government is, the Crown Solicitor's client. What we are trying to do by this clause is to say that, for this matter, the Crown Solicitor exercises an independent discretion.

Ms CHAPMAN: Let me ask you: do you say then that you would be barred by this section from acting as the employer, including the power to remove him or her if you were unhappy with a decision made by the Crown Solicitor being exercised under this act?

The Hon. M.J. ATKINSON: I am afraid the member for Bragg is off on another frolic of her own.

Ms CHAPMAN: I have another question, Madam Chair.

The CHAIR: Member for Bragg, this is indeed seeking indulgence.

Ms CHAPMAN: I will ask it on all the other clauses, if you like.

The CHAIR: Member for Bragg, I would ask you to be concise.

Ms CHAPMAN: Is it proposed that the Crown Solicitor will receive any other payment or remuneration for this new independent role they will undertake in this new jurisdiction and, if so, how much?

The Hon. M.J. ATKINSON: No; second part, inapplicable.

Clause passed.

Clause 8 passed.

Clause 9.

Mr HANNA: I move:

Page 6, lines 33 to 35 [clause 9(1)]—Delete subclause (1) and substitute:

(1) The Crown Solicitor may make an application to the District Court for an order under this section in relation to a person if—

(a) the person has previously forfeited proceeds of an offence; or

(b) a confiscation order has previously been made against the person in respect of proceeds of an offence;

under the Criminal Assets Confiscation Act 2005 or a corresponding law (within the meaning of that act).

One critical problem with this bill is that the process of taking assets off a citizen can be triggered on the basis of a reasonable suspicion. Even if a citizen is able to establish that his or her assets have been lawfully obtained, it would be a massive imposition upon someone to be dragged through the courts in this way. As I have already pointed out, not many people would be able to justify the acquisition of a lifetime of assets down to the last dollar if required to do so. Most people would not keep their receipts and pay packets for more than five years, if that.

The net being cast by the government is extremely broad. One of the amendments the opposition and I have sought to effect here is reallocation of the gatekeeper role to the DPP. It is perceived that, in theory, the DPP would have somewhat more independence than the Crown Solicitor. The problem remains that the net is so widely cast. It is quite foreseeable that application may be made for a person to explain their assets, etc., under the legislation based on hearsay; that is to say that there may be some aggrieved person, such as a former business partner, a former lover or a former friend, who decides to make life difficult for their erstwhile companion and provides information to the police which can then be cast in the role of criminal intelligence.

The aspersions cast by such means would then trigger off the proceedings under this legislation, because they could amount to a reasonable suspicion and the Crown Solicitor could approve the proceedings. The problem I see with that is that, at the end of the day, there will be mums and dads, young people and old people affected by this who really have no criminal inclination or connection whatsoever, and it is for them that I speak up.

The halfway house, the compromise that I am suggesting, is that the legislation stand but be restricted in its application to people who have previously forfeited proceeds of an offence, or where a confiscation order has been made against a person in respect of proceeds of an offence under the current criminal assets confiscation legislation. This would mean that a crime would have had to be proved and that there is a connection already established between that person's assets and that crime.

It seems to me that if you look at that subset of people there may well be those who have, over a period of time, profited from crime but where it is difficult to establish the connection between all of the dubious assets and all of the criminal activity engaged in by that person. We know that, when there is a long history of criminal conduct, very often the DPP will look at only one most easily proved aspect of that conduct, or perhaps a period is the subject of the prosecution because the evidence supporting the charge is better for that particular period. The DPP therefore does not necessarily proceed on the basis of all of the criminal activity over all of the period that offending occurred when it goes after someone.

I am suggesting that, once it is established that there has been a crime and that a person has benefited from that crime, they become fair game, in a sense. Even then, I am not happy with all of the provisions of this legislation, but at least it would represent an honest targeting of a criminal element in our society if this amendment is upheld.

The Hon. M.J. ATKINSON: The amendments proposed by the member have the general effect of linking applications for unexplained wealth orders to people who have already been the subject of confiscation orders and other forfeitures under the Criminal Assets Confiscation Act 2005. This in turn will necessarily mean that an unexplained wealth order is linked to specific crime-related activity by a person.

These amendments are not acceptable to the government. The whole point of the unexplained wealth system is that there is no necessary link to other confiscation proceedings or, indeed, any crime-related activity. The whole point is that the object of the proceedings has wealth and has to explain how he or she came by it. That is the essence of the scheme where it exists in Australia: in Western Australia (and I refer to the Criminal Property Confiscation Act 2000), in the Northern Territory (Criminal Property Forfeiture Act) and where it is proposed in Australia to date, namely, the Commonwealth Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009.

The government will not agree to having its adoption of the system so heavily watered down in this way. I think the member for Mitchell would simply be better off voting against the third reading, which I presume he intends to do, from the tenor of his comments in the house and outside the house. I would point out that the unexplained wealth bill is prefaced by the words 'serious and organised crime', so that is the context in which the judiciary will interpret it.

Ms CHAPMAN: The opposition has considered the member for Mitchell's amendment, and our position on this is that we will not support it. That is not to say that it is not without merit. There is no question that it does not completely obviate the need to have this bill. Obviously, it would capture a much more limited group of people. At the moment, under our confiscation legislation it has to be related to a crime, and this measure would be looking to secure funds from those who had some prior history. However, certainly, as the Attorney said, it would significantly reduce those that it would catch. I am not at all persuaded by the Attorney's statement that, just because there is a preamble to this bill that says 'serious and organised crime', that will—

The Hon. M.J. Atkinson: It's not a preamble; a preamble is different. It's the title.

Ms CHAPMAN: —to the title of the bill—make it any more secure. What gives us some comfort is that there is a gatekeeper who is supposed to reach a threshold on information before him or her that there is a reasonable suspicion that the person has wealth that has not been lawfully acquired. So, there is a process that we have to go through.

The opposition has presented an amendment to support the notion that this would be more independently done through the DPP. That is as it applies in other jurisdictions, and we think for good reason. It is of concern to us that it is the Crown Solicitor, as such, who is appointed. I have only briefly considered this matter, but the Crown Solicitor is someone who is appointed by the government (as is the DPP, of course). However, in this case it is someone who gives advice to the government under the Crown Proceedings Act 1992, is a corporate sole as such, and—

Mr Hanna interjecting:

Ms CHAPMAN: That is right, I should say it is a corporation sole, which may act through the instrumentality of the person for the time being holding the office or any other person to whom the officeholder delegates his or her functions. We know that is the case, because the Attorney-General might send to the Crown Solicitor a brief to say, 'I need some advice on this,' and the Crown Solicitor receives it and thinks, 'Right, I will delegate that to Joe Smith to prepare an opinion on that,' and that is quite lawfully done. It would be impossible, obviously, for one person to do all of the work that is required in that office.

There is no restriction in this bill, that I am aware of, that even requires that it has to be the person holding the position of Crown Solicitor and he or she must be the person who has actually undertaken the work and considered the criminal intelligence (the presentation from the police commissioner, or anyone else), that it is he or she who must make that determination and it should be restricted to that. These are all the reasons the opposition is concerned about what is essentially a good initiative but almost utterly destroyed by the sloppiness of what has been presented to us.

However, we have made the attempt to redress some of our concerns in that regard, but it seems the Attorney-General is fixed on his desire to proceed with his bill unamended. Certainly, we have concerns. It would nullify the whole benefit of this bill except for one small sample of the community that it might still deal with, and we would be hopeful that, in allowing this bill to proceed without this amendment, in another place, wiser heads would be able to remedy the defects of what will come out of this chamber.

Of course, that is the chamber that the Premier has, until recently, wanted to get rid of altogether and was going to give the people of South Australia the choice of getting rid of. He now wants to completely undermine its role as a house of review. Nevertheless, I am still hopeful that there will be an opportunity for the council to remedy some of the defects of this bill. With those comments, I indicate we do not support the member for Mitchell's amendment.

The Hon. G.M. GUNN: I can understand why the member for Mitchell raises this issue, because it is very important when we are discussing measures that are draconian in nature that this parliament is fully aware of the consequences. I hark back to what happened with these disgraceful on-the-spot fines that we have.

When they were originally introduced into this parliament, this parliament did not have any idea, nor was it briefed, that these fines were going to be handed out like confetti, in some cases, and that people's rights were going to be abrogated and people would not have the ability to defend themselves properly against the most trifling and unnecessary on-the-spot fines. So I am always suspicious of the government.

I do not say this without experience in these areas or having dealt with them on a regular basis. I always take the view that common sense is the greatest asset you have, and if you treat people reasonably you will not have a problem, but when you act unreasonably that will generate another unreasonable course of action. That is why I make these comments without fear or favour today.

I had it brought to my attention yesterday morning when I was in my office at Kapunda. That is why, when I see certain vehicles around the place, I take the numbers and put questions on notice, and I have a few more to lodge in the next couple of days, because I believe unreasonable action has been taken. The parliament never intended those things to be revenue raisers, which they are. Read the local Barossa Valley newspapers from the last few days and see what the comments are, and then link it back to this.

I do not have much trouble with the amendment moved by the honourable member because, once this measure becomes law, members of this house will not have any say about it. All members in this place will have is someone who has become an unintended victim, because the average person would have no idea that these provisions are being put through the parliament. They would expect the parliament to apply common sense, not appease the egos of certain people who want to put things on the statute book to show how tough they are but, in actual fact, are taking away people's rights.

My comment to this committee is this: reading through these provisions very carefully, I think certain people who do not keep good records are going to have some trouble—and they may be quite innocent. In moving his amendment, I think the member for Mitchell has given us the opportunity to have the bill further considered in another place because, at the end of the day, we have a system where it is impossible for people to get adequate legal representation. If we are going to continue to pass laws like this, we will need to have a very large legal aid department or a public advocate available to citizens. I will not be here, but I guarantee that, in future, either the state or the commonwealth will have to provide legal assistance to people because members of parliament have passed laws of this nature.

I will just give an example, which I think is appalling. One of my constituents had to put up $2,500 before he could get legal representation to defend himself in the Magistrates Court. Before he got there, he had some legal aid assistance. I think it was put off and strung out three times, because it was pretty obvious that the police did not want to front up to the court, which put this aged gentleman—who had never committed an offence in his life—through great trauma.

I went and sat in the court, and it was most interesting. I sat in the court because I was concerned that an injustice had been perpetrated, and we encouraged him. I was proved to be right—

The Hon. M.J. Atkinson: As always.

The Hon. G.M. GUNN: I knew I was right. Common sense did not apply because the bureaucratic system was not prepared to admit that it was wrong, which is a disgrace. I told them what was going to happen, but they proceeded. It got to court, of course, and the magistrate threw the case out and awarded the $2,500 costs against the police. Fortunately, that person had the money, and we were prepared to back him, because we knew he was right. We knew that the system was against him. It was an absolute disgrace that that poor person and his family went through such trauma to reach that stage. They were at a complete disadvantage, as people will be under this, because the state, the government—its agencies and instrumentalities—has unlimited resources. That is my concern.

If people peddle drugs, of course the state should take their money, but there will be people who are involved in other things who will have difficulty defending themselves. If people are guilty, I do not have a problem, but I have a problem where people do not have the ability to defend themselves.

From my experience in this place—and I have seen all sorts of situations—I have come to the clear conclusion that you have to be very careful when you start taking away people's rights, because they do not have the ability to defend themselves. The Attorney must see it in his own office. I see it on a daily basis. I think the same thing will happen in this country as has happened in the United Kingdom with some silly on-the-spot fines. It got to the stage where it became so embarrassing that, one night, the government of the United Kingdom pulled the pin on some of those big councils and drastically reduced their ability to impose some of these silly things.

That will happen here because you have taken away people's ability to defend themselves. If you think people are not talking about it then you had better get out there. The Attorney reckons he knows a bit about political issues, you know, 'touch the wind'; well, I reckon I might know a little bit about what people are thinking in the political world. I think I have been a bit of a street fighter in my time, and I know what people think and I know what the political issues are. Continuing to take away people's rights without giving them the ability to defend themselves is not democratic and will cause people to react strongly. I think that what the member has done in challenging the Attorney is correct, it is right. We should not rubber-stamp these provisions.

The Hon. M.J. ATKINSON: The approach of the parliamentary Liberal Party to this bill is rather like its approach to the serious and organised crime bill. In the public square, when this was debated, the leader—in the case of the serious and organised crime bill the member for Waite; in the case of this bill the member for Heysen—said that they supported the bill. Indeed—

Ms CHAPMAN: I rise on a point of order. What is before us is an amendment presented by the member for Mitchell. He has moved it and spoken to it, as has the Attorney, as have I and as has the member for Stuart. I do not know what gives the Attorney licence to speak on this matter several times. We can speak once. If he has a question for the member for Mitchell I would be pleased to hear it; otherwise, we could have an argument back and forth all night on the member for Mitchell's motion.

The CHAIR: Order! The member for Bragg knows that the chair has been quite indulgent in relation to enabling discussion of this important bill. The Attorney.

The Hon. M.J. ATKINSON: The leaders of the parliamentary Liberal Party, the opposition, give the impression to the public that they support the serious and organised crime bill and that they support the unexplained wealth bill. The current Leader of the Opposition goes further, and says that we should have done it five years ago. However, when the matter comes on for debate in the parliament, the leaders are not present—neither of them. Just as the former leader was not present for most of the serious and organised crime bill debate, so the current leader has not been present for the unexplained wealth bill.

Mr Hanna: Not that you would refer to that.

The Hon. M.J. ATKINSON: No, not that I would refer to that, until the taboo was broken by the member for Mitchell—today, actually.

Mr Hanna: Petty.

The Hon. M.J. ATKINSON: But true. They send their lieutenants into the house—

Ms CHAPMAN: I have a point of order, Madam Chair. How can this possibly be advancing the committee stage of this bill? This is just an abusive tirade from the Attorney-General about the integrity of the members who are contributing to debate.

The CHAIR: Member for Bragg, debate is not permitted in points of order. The Attorney may continue, and address the amendment.

The Hon. M.J. ATKINSON: I am addressing the amendment because, as the member for Bragg and the mover of the amendment, the member for Mitchell, acknowledge, carrying this amendment would render nugatory most of the reach of the bill. It would have much smaller scope than if the current form of the bill prevailed. Really, we are talking about the reach or scope of the bill; we are going to the very essence of the bill.

The Leader of the Opposition in both the serious and organised crime bill (then the member for Waite) and in this bill (now the member for Heysen), having publicly pledged to support the bill, because they think that is popular, send their lieutenants into the house to do everything they can to amend the bill to negate the substance of its provisions—and, in the case of the member for Stuart, essentially speak against the bill, albeit in the committee stage. It may seem a clever strategy but it is not an honest strategy. The parliamentary Liberal Party is trying to play both sides of the street.

Ms CHAPMAN: Point of order! Now the Attorney is imputing motive of a member of this house, the Leader of the Opposition, and the member for Mitchell and myself, I think, are thrown in to boot.

The Hon. M.J. Atkinson interjecting:

Ms CHAPMAN: Furthermore, I take the point of order that the only thing, apart from the tirade of abuse that the Attorney has contributed to date, is a repetition of his previous statement, that is, that it restricts the extent of the bill. So, there is no new argument or no new value to the contribution other than a tirade.

The Hon. G.M. GUNN: The Attorney-General, in his usual charitable way, wants to reflect my opinion. I am not against appropriate measures, but what I am doing, and what this parliament and what his backbenchers should do, is question the government of the day, challenge the government, and make it explain what it intends to do. It is no good sitting back like rubber stamps and doing nothing. We are not elected to this place to be acquiescent or to say yes to the dear leader. We are here to challenge, debate and question. That is what we are here for. I know it gets a bit tedious and boring, and we lose a bit of sleep, but that does not matter. I do not mind that the Attorney has said charitable things about me on many occasions, and it has not done him much good.

Mr Goldsworthy: He hasn't said too many about me.

The Hon. M.J. Atkinson: I do it on merit.

The Hon. G.M. GUNN: One thing is that there has not been much merit in some of the things he has said about me, because it has been of considerable benefit to me.

The Hon. M.J. Atkinson: I almost got you three times. I feel like Wiley E. Coyote.

The Hon. G.M. GUNN: Just being a practical farmer, I don't understand what he is talking about. That reminds me of the time when Don Dunstan called me a troglodyte; I didn't know what he was talking about. Nevertheless, I am still here.

But I say again to the honourable member: no matter what he thinks about me, the member for Mitchell and others, we are entitled to question and challenge him on these provisions. I look forward to that process taking place further up the road. I think this amendment should be counted. I look forward to supporting the member for Mitchell at a later stage of this matter, but I just point out to the Attorney again that surely he does not expect us to rubber-stamp every provision he puts up in this house.

The committee divided on the amendment:

AYES (3)
Gunn, G.M. Hanna, K. (teller) Penfold, E.M.
NOES (37)
Atkinson, M.J. (teller) Bedford, F.E. Bignell, L.W.
Breuer, L.R. Caica, P. Chapman, V.A.
Ciccarello, V. Conlon, P.F. Evans, I.F.
Fox, C.C. Geraghty, R.K. Goldsworthy, M.R.
Griffiths, S.P. Hamilton-Smith, M.L.J. Hill, J.D.
Kenyon, T.R. Key, S.W. Koutsantonis, A.
Lomax-Smith, J.D. Maywald, K.A. McEwen, R.J.
McFetridge, D. O'Brien, M.F. Pederick, A.S.
Pengilly, M. Piccolo, T. Pisoni, D.G.
Portolesi, G. Rankine, J.M. Rann, M.D.
Redmond, I.M. Snelling, J.J. Stevens, L.
Weatherill, J.W. White, P.L. Williams, M.R.
Wright, M.J.

Majority of 34 for the noes.

Amendment thus negatived.

Ms CHAPMAN: This is probably the most significant machinery clause of the bill which actually sets out the procedure to apply to unexplained wealth orders. During the briefing on this bill I asked a number of questions which I am disappointed to note I have not had a response to. I will list them off, if you like.

The Hon. M.J. Atkinson interjecting:

Ms CHAPMAN: Notwithstanding the interjections of the Attorney, almost at the same time as the briefing by the Attorney-General's Department on one child protection matter, I similarly had a briefing from minister Rankine's department on child protection legislation, both of which are pending before the parliament, so I will not go into detail on them, but suffice to say that I had a prompt, immediate and comprehensive response from minister Rankine's office to the queries we had. I mentioned this in the parliament the other day, and conveyed my appreciation to her staff, because that was most helpful in our being able to progress areas on which we agree.

I have sought answers, and I am disappointed to note that I have not received any. The first was the value of the confiscated assets which have been forfeited to the Crown to date by order under our current act. It is a pretty simple question; it has been in operation only since early in 2005. Have there been 10 or 20 cases? What is the value of assets that have been confiscated under that act? I am yet to be provided with that information.

I also sought a list of the assets and a breakdown of both the confiscated assets and what had been declared by way of debt as an unexplained wealth order under the Western Australian legislation. The response on that was that they were not sure they would be able to give that breakdown but that some effort would be made to provide some of that information; it may not have been able to be broken down. Associated with that was any applications that had been made in each jurisdiction either under our act or Western Australian legislation where the judgments had determined that the application was unsuccessful, but not a word from the Attorney-General's office on that.

The Hon. M.J. ATKINSON: What was that?

Ms CHAPMAN: The judgments that had been made where applications for confiscation or an unexplained wealth order had been unsuccessful.

The fourth thing was confirmation and a copy of the submission, if it was available, as to the position of the Chief Justice of the Supreme Court on this bill. As the Attorney well knows, we inquire, as I am sure other members of parliament do, of the government as to what consultation it has undertaken and, where appropriate, we rely on the information that is provided in those briefings as to what inquiry has been made. We accept on the face of it assurances that are given where there has been an indication of support or otherwise. It does not always translate that way; sometimes we find out that consultation was really just a presentation and an opportunity to question, but we would say there has not actually been a consultation in the true sense, and we make further inquiry. However, on the face of it, we are prepared to accept that.

It was our understanding, which was conveyed to representatives of the Attorney-General's office on that day, that the Chief Justice had declined to comment on this matter because of his concern of what would be introduced—not as a comment on the law itself but that, as a consequence of this law, there would be an extra burden on the courts to make that assessment.

The Hon. M.J. Atkinson: You just made that up.

Ms CHAPMAN: No. Can I just say that, on the day during the briefing, that was conveyed as a concern that was raised with us and about which we made inquiry. We were then told that the Chief Justice in the response—and I have noted it here—had declined to comment. I do not know whether that has come in a letter or whether he rang up the Attorney and said, 'Well, look, I'm not going to say anything on this unless you give me some more money.' Whatever. I do not know what his answer was. We made that inquiry and we would expect that we would have some response. If the Attorney does not want to give us any response during the course of the briefings—

The Hon. M.J. Atkinson: You wouldn't vote for it, anyway. You are just rusted on the—

The CHAIR: Order!

Ms CHAPMAN: Excuse me. The Attorney interjects that we are opposing. I have indicated the opposition's position on this. The concern that we raise, though, is that, not only have we not had these questions answered but we do expect that if you are not going to give us any information that you just tell us. 'Ask what you like, Chapman,' you could say. 'I don't care what you ask. We'll tell you what we want to tell you and we're not going to give you anything else.' Do not waste my time in a briefing—

The Hon. M.J. Atkinson interjecting:

The CHAIR: Order!

Ms CHAPMAN: The Attorney keeps interjecting about these things. We have more bills to deal with today, which we are happy to do, and the Attorney will be very pleased to know that we will be supporting a number of them. What is annoying, frustrating and frankly contemptuous of the members of the parliament here is that we go along to have these briefings and ask for reasonable information. It is reasonable for us to know how successful or otherwise the confiscation bill has been. It is reasonable, surely, that if it has some defects and some have been highlighted by any judgments in between that we know about it and that we might assist the government to say, 'Well, look, while we're here, shouldn't we be fixing up X, Y or Z?' That is pretty logical, just as we are assisting by giving an indication of support of this bill. We are trying to fix up the defects of it, but we have already indicated support.

In the absence of not receiving any of that information, I ask whether the Attorney has received any communication from Chief Justice Doyle in respect of his view of this legislation and, in particular, in relation to any added burden to the workload of his courts in the event of its implementation. If he has it in writing, will he table it, and if he has received it but it is oral can he tell us what it is?

The Hon. M.J. ATKINSON: Taking the last question first, yes, we have heard from the Chief Justice. He had some anxiety that it may add to the civil trial list. Well, that is just wrong because there will be only, at most, two or three of these applications in a year. To go back to the start of her diatribe, the member for Bragg talked about some questions that she asked on the child protection bill. What she withheld from the house is that she asked those questions only today. She asked for a list of people we had consulted, a copy of their submissions and a copy of the letters they had sent.

We do not breach the confidentiality of people who communicate with us by handing them over to the member for Bragg who, on previous form, will verbal them. Furthermore, we are not the parliamentary library. What the member for Bragg will not do is her own research. She has the research capacity of a naughty schoolchild. She asks the government to do all her research for her, and that is not something the government provides. I would have been ashamed during my period as shadow attorney-general (and it was a long period, something like seven years) to have asked Trevor Griffin's staff (then the attorney-general) to do my research for me; and his staff and Mr Griffin will confirm that I never did so, nor did I ever approach Mr Griffin or his staff asking for an extension of time. Apparently, a fortnight's notice of a bill is not sufficient for the member for Bragg to respond in the parliament. In fact, the member for Bragg criticised us time and again for not introducing the domestic violence bill. Now that we have introduced it, she is seeking an extension of time and trying to put it off.

The claims that the member for Bragg has made in her previous diatribe rank with her claims about the Ceduna school detention room, the Mount Gambier kidney, the Kate Lennon payout and the Kate Lennon defamation case, all of them a complete invention, proved to be falsehoods, and not once has she had the decency to go back to the places where she made the claims, particularly to parliament, and to admit that she told untruths.

Ms CHAPMAN: I start by placing on the record the disgusting allegation just made by the Attorney-General that I or anyone else on this side of the house—or, indeed, anyone sitting behind him—would verbal a party who is being consulted in respect of a bill. That is utterly disgraceful. I ask, Madam Chair, that you require the Attorney-General to apologise for that statement and that he withdraw it.

The CHAIR: Attorney, while I do not think that that remark was unparliamentary, it has offended the member for Bragg, so I invite you to withdraw it.

The Hon. M.J. ATKINSON: No, ma'am.

Ms CHAPMAN: Well, I note the standards that we have reached. You are clearly down in the gutter—

The Hon. M.J. Atkinson interjecting:

Ms CHAPMAN: Whilst the Attorney continues to raise an issue that is in the parliament, he might like to read what was said the day after that issue was raised in the parliament, during which it was exposed—

The Hon. M.J. Atkinson interjecting:

The CHAIR: Order, Attorney!

Ms CHAPMAN: —that the Minister for Health, in respect of that issue, had made a claim about the disclosure of information on the kidney that was wrong, and the information that had come, and all of that was recounted the day after in this parliament. So, I would like the Attorney to read the Hansard before he starts coming in and making false allegations about a particular matter.

As we are clearly not going to get any information from the government (what the Attorney sees as a failure on the part of the opposition to do its own research), I just place on the record that we seek the information that would be available to the government but which has not yet been published, which includes the completed matters in relation to the confiscation of assets act (which currently applies). That is an act that we debated in 2004 and it came into effect in, I think, early 2005. If there had been any cases at all, the Attorney can know about that. Apart from judgments, we do not have any record of cases that may be pending until we receive the annual reports. The annual reports, of course—

The Hon. M.J. Atkinson interjecting:

Ms CHAPMAN: I said 'apart from the judgments'.

The CHAIR: Attorney!

Ms CHAPMAN: I do not know whether the Attorney understands that law reports are the judgments: we are talking about the same thing. Perhaps he needs to go back and do some legal training or something to understand that. However, in the meantime, this is information that is available to the government and, if it wanted members of the parliament to be informed so that they may support or constructively add to legislation that we deal with, one would think that the Attorney would be rushing to provide it. However, quite clearly, he does not, and he has the gall to come in here and say that he is not going to provide it.

We now know where we stand on this, that, clearly, anything that we ask for in the course of the briefings will not be provided. So, when Matthew Goode, or anyone else who comes along during the course of these briefings who is a well experienced adviser and offers to take that back and, subject to approval by the Attorney, provide that information, we leave that meeting on the understanding that it will be available. However, we now know the truth. The truth is that the Attorney, as a member of the government, on behalf of the people of South Australia, is not going to do anything to keep the members here (including me) in the parliament abreast of the information that would be necessary for us to make a reasoned assessment. We can go blind on the basis of the information that is there—

The CHAIR: Order, the member for Bragg! I have been very indulgent in allowing you to speak for approximately five minutes on matters not at all related to the clause in question. Can you return to the clause in question.

Ms CHAPMAN: The question is that, when the Attorney says that there would only be two or three cases a year that might go into the list in response to what the Chief Justice has apparently said, did he make any assessment of those two or three cases on the basis of other jurisdictions or has he plucked it out of the air? In making that assessment, did he make any assessment as to how long, on average, these cases would be?

The Hon. M.J. ATKINSON: The only reliable public source of information about the Western Australian system is the annual report of the DPP. These are available online ('online' refers to the internet, for the benefit of the member for Bragg). The latest report was for the year 2007-08. The report does not specify how much was obtained specifically from unexplained wealth declarations. It is clear that they are few in number.

Ms Chapman: How do you know?

The Hon. M.J. ATKINSON: Because the Office of the DPP report says so.

Ms Chapman: No, it doesn't.

The Hon. M.J. ATKINSON: Well, as a matter of fact, it does. If the member for Bragg had even opened the report and had a look at it she would know that. I am relying on the report of the Office of the DPP for Western Australia, which has had this legislation now for nine years. That is why the Leader of the Opposition said we should have done it five years ago; that is to say, we should have done it more promptly after four or five years of experience in Western Australia. This argy-bargy about doing the research for the shadow attorney-general was never a problem with the member for Heysen: it has only been a problem with the member for Bragg.

Between 2001-02 and 2007-08 there were only seven finalised proceedings, two in 2007-08. So that is in a jurisdiction that has had this for the longest time. I think that answers the member for Bragg's question directly, but I am sure it will not answer it because the member for Bragg will just reformulate the question until no person could answer it. This compares with 219 on the ground of being a declared drug trafficker, with a total benefit from 67 in 2007-08 of nearly $8 million. Members can rest assured the government will be coming back to parliament with a declared drug traffickers bill as soon as business will allow.

So far as South Australia is concerned, the annual reports of the DPP show this: in 2005-06, $807,299 was paid into the Victims of Crime Fund; in 2006-07 it was $1,222,116; and in 2007-08 the amount was $1,686,520—a success which I am sure the member for Bragg will be weeping about.

The honourable member asked for an assurance that other litigants will not be disadvantaged by this new proceeding. Obviously, no such assurance can be given. If she had any experience outside the family law jurisdiction, she would know that. All that can be said is that the evidence from Western Australia is clear: these proceedings are likely to be lengthy and complicated, but there are likely to be very few, one or two each year, if that many. In the 2008 estimates the then shadow attorney-general asked:

How many unexplained wealth declarations have been commenced or finalised in the last financial year, 2006-07? How many are expected to be finalised in 2007-08 or expected to be commenced?

The DPP replied:

The answers are: none, and several are in contemplation. The major impediment to proceeding successfully with unexplained wealth declarations is not the inability to recruit senior prosecutors to manage them, but the problem with presenting appropriate accounting evidence from a forensic accountant upon which to base the application. There have been some very useful discussions in recent times between my office and the police department, the result of which is that my office presently has several applications under consideration. However, I am not in a position to indicate whether any or all of these will proceed to an application.

I would have thought the DPP is in a very good position to comment on this. There is a wealth of information supplied there to the member for Bragg, and I am convinced that it will not satisfy her. In fact, nothing I will say will satisfy her.

Ms CHAPMAN: Will the Attorney then answer the question of how he made the assessment that it would be two or three cases a year under the unexplained wealth bill that he anticipated would be the workload for the courts?

The Hon. M.J. ATKINSON: Upon the basis of the information I just supplied at some length from the Office of the DPP of Western Australia, which has had the legislation for nine years, and is a state of similar size to South Australia.

Ms CHAPMAN: Perhaps it is the mathematics, but I think the minister just said there were seven sets of proceedings from 2001-02 to 2007-08. I assume that to be in Western Australia. We still do not have a breakdown of which were unexplained wealth and which were confiscation or a combination of both, so how does he use that as the basis upon which to say that two to three cases a year would be heard?

The Hon. M.J. ATKINSON: I cannot supply the numeracy that clearly is missing from the member for Bragg's education.

Ms CHAPMAN: The Chief Justice having raised this matter and your giving an assurance that it would be two to three cases a year as your estimate of case load, what is the estimate of the length of these trials?

The Hon. M.J. ATKINSON: The question has a flawed premise. I did not give the Chief Justice an assurance.

Ms CHAPMAN: Having given this house an assurance that it is two to three cases a year that is the expected workload—

The Hon. M.J. ATKINSON: I did not give an assurance. I gave an estimate.

Ms CHAPMAN: Let me rephrase it. Having given the parliament an estimate that it would be two to three cases a year, what is the estimate of the length of those trials that you have identified would not result in any interference with the civil list?

The Hon. M.J. ATKINSON: Madam Chairman, I am not a clairvoyant.

Ms CHAPMAN: Have you made any provision—

The CHAIR: Order, member for Bragg! Can you explain to the chair how your questions relate to this clause, for my assistance?

Ms CHAPMAN: Madam Chair, we are talking about the unexplained wealth orders, and there are a number of subsections in this. This is the hub of the whole bill as to what is being proposed to be implemented.

The CHAIR: And the standing orders provide for three questions. I know you have the ability to keep asking questions on every clause and hold up the committee, but you have been considerably involved. I ask you to focus your questions so that we may move on.

Ms CHAPMAN: Have you made any provision, Attorney, for the two to three cases a year estimate and, if so, how much is in the budget to cover the cost of the court time?

The CHAIR: Attorney-General, do you wish to reply?

The Hon. M.J. ATKINSON: No, I do not.

Ms CHAPMAN: The member for Bragg.

Ms CHAPMAN: Do I take it, Madam Chair, that the Attorney just refuses to answer, or cannot answer, or cannot think of an answer? What is the position? He just wants to sit there like a stunned mullet?

The CHAIR: Member for Bragg, do you have another question? The question is that clause 9 stand as printed.

Clause passed.

Clauses 10 and 11 passed.

Clause 12.

Mr HANNA: I am not proceeding with the remaining amendment in my name, but I am glad to have the opportunity to speak to clause 12. This clause highlights just how easily the whole process against a citizen can begin. Subclause (2) of clause 12, in particular, sets out the bases for the Crown Solicitor authorising the exercise of powers under the investigation part of the act. This investigation in itself will be an onerous imposition upon a citizen, whether or not it is ultimately found that there is unexplained wealth.

For the whole process to commence, the Crown Solicitor merely needs a reasonable suspicion that (a) a person is involved in serious criminal activity; (b) they associate with a person who is involved in serious criminal activity; (c) the person is, or has been, a member of a declared organisation, presumably a bikie gang or organised crime group, or similar; and (d) a person who has acquired a benefit from one of these other types of people. I am paraphrasing in explaining the various bases for action.

The Crown Solicitor's role might be thought of as somewhat redundant, in fact, because if the Commissioner of Police through his SAPOL officers presents to the Crown Solicitor an affidavit or otherwise presents criminal intelligence which says, 'This person we want to target is one of these people. We believe they are. We have heard from informants, who may be nameless, that this person is a person we are after.' Perhaps it will be sufficient for an assistant commissioner of police to say, 'I believe that this person is a member of the Finks motorcycle gang,' or 'We suspect that this person has engaged in serious criminal activity in the past, although they have never been charged with a criminal offence.'

I ask members to put themselves in the position of the Crown Solicitor in that case. There is some evidence there, albeit only hearsay evidence. It is possibly the word of one person spoken to another person who speaks to an informant of the police that is presented in the form of the criminal intelligence presented to the Crown Solicitor. My rhetorical question is: what else can the Crown Solicitor do? How could the Crown Solicitor not reasonably suspect the person named in the criminal intelligence to be a suitable target, bearing in mind the provisions of this clause? It is going to be very easy for the police to link a target in the appropriate way, with relevance to those criteria.

I suppose the Attorney-General might reply, 'The police aren't going to present such intelligence to a person who has never come to their attention before.' I suppose that is true, but my point is that the role of the Crown Solicitor in this is almost redundant, because it is pretty hard to conceive a situation where the police present a dossier of criminal intelligence to the Crown Solicitor, making allegations based on what the police have heard and what they believe, all untested in the courts. It is hard for the Crown Solicitor to come to a conclusion that there is no basis for a reasonable suspicion. There is at least some evidence by the very fact of the situation.

There is some evidence before the Crown Solicitor. It may be weak evidence; it may be hearsay evidence; it may be untested evidence, but if a senior police officer says, 'Here we are; we believe this person ought to be a target, and we have heard from someone that they have done these bad things in the past,' or 'They're a member of this organisation,' it is going to be very hard for the Crown Solicitor not to come to the conclusion that there is a reasonable suspicion.

So, I ask the rhetorical question: why even have that role of gatekeeper there at all? It is purportedly to provide a safeguard against the Commissioner of Police simply picking a person out in the public and saying, 'I am requiring you to explain your wealth' and initiating the investigation process and, secondly, the court application process to actually require the explanation of wealth.

This whole scheme of the Crown Solicitor being presented with criminal intelligence and then forming a suspicion or not is purportedly a safeguard. I am really trying to suggest to the Attorney that it is a fairly weak safeguard, not because of the integrity of the Crown Solicitor but because the standard which the Crown Solicitor has to use is actually so low. The nature of the evidence which the police can provide and still meet the standard is perhaps questionable, and certainly need not have been tested in the courts.

Does the Attorney-General really believe that this mechanism of the Crown Solicitor being gatekeeper and being required to form a reasonable suspicion is any sort of substantive safeguard?

The Hon. M.J. ATKINSON: Yes, I do. Forming a reasonable suspicion is an age-old standard required of public officials, including police. It is hard to know where to begin to point out how erroneous the member for Mitchell's view is. I think part of it is that he has no experience in government or in office, and that is understandable. I believe that the Crown Solicitor will act with integrity. I believe he will apply the standard—which is a well-known standard—to public officials, and I am confident that he will fulfil the gatekeeper's role well. If the police convey information to the Crown Solicitor it will be tested rigorously, just as the information supplied to me by police for the purpose of the Serious and Organised Crime (Control) Act was tested by me rigorously. At the time the member for Mitchell suggested that I was no gatekeeper, but I can assure him that I was.

Clause passed.

Clauses 13 to 17 passed.

Clause 18.

Ms CHAPMAN: This relates to the question of jurisdiction in the bill, which can be exercised by a judicial officer sitting in chambers. There are a number of other clauses that relate to who would hear these matters, and then there is some provision in clause 26 for appeal to the Supreme Court.

The Attorney-General has raised an issue of apparent ignorance on my part because of my failure to appear in a number of jurisdictions; I think his words were, 'Of course, you wouldn't know because you have only ever appeared in the Family Court.' If, in 20 years of courtroom appearances, I had appeared only in the Family Court of Australia, a court of federal jurisdiction, I would be proud to stand here and say that. It covers a number of different federal jurisdictions, and through that I have had the opportunity to have cases in the High Court, and been proud to do so.

So that the Attorney understands my lack of understanding of these processes, I indicate to him that I have appeared in criminal courts a number of times over that 20 year period. I retain my counsel certificate and membership of the Bar Association and ultimately, after this life, I will probably continue to do so. Hopefully, by then the de facto property legislation might have transferred to the commonwealth and I will not have to keep going back to the Supreme Court to deal with the property rights of those who cohabit.

The Attorney will be pleased to know that I have also had the privilege of appearing not only in a number of state courts but also, on one occasion, the industrial court. I would not suggest that that gives me some great expertise in industrial law, but it is an interesting jurisdiction. On one occasion I appeared in the bankruptcy court, when we successfully overturned an application for a declaration of bankruptcy against a shop-owner, and I have also appeared in a number of other state and federal jurisdictions.

That does not necessarily mean that I am an expert in the court processes of any of them, neither will I suggest in this house that, just because the Attorney-General only ever appears in courtrooms as a witness, a plaintiff or a defendant, he does not actually have the capacity to carry out his duties as Attorney-General. Unfortunately, some of his other limitations make that a difficult exercise for him to undertake.

However, there are many ministers in government who undertake their duties extremely well without necessarily having experience in a particular discipline, profession or business operation. I will give one example. I do not know that the current minister for agriculture has an extensive history in farming or agriculture in South Australia, but, on my assessment, there are a number of things he is managing very well as minister.

This continues to reduce our debates to alleged experience, proficiency or expertise. We understand what limitations we have, and when we inquire of those who have the expertise and resources to provide us with the information to ensure that we are properly briefed and well positioned to contribute positively to debates, that is denied. My question is: could the Attorney-General explain why this is necessary in the legislation, when I understand that there are other powers to enable sitting in chambers?

The Hon. M.J. ATKINSON: We included this out of an abundance of caution. The member for Bragg might reflect on the number of times she has criticised me because I have not had a practising certificate. I think readers of Hansard would want to know that as the background to the previous tirade.

Clause passed.

Remaining clauses (19 to 45), schedule and title passed.

Bill reported without amendment.

Third Reading

Bill read a third time and passed.

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