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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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CRIMINAL ASSETS CONFISCATION (PRESCRIBED DRUG OFFENDERS) AMENDMENT BILL

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 27 March 2012.)

The Hon. J.R. RAU: I move:

That the Legislative Council's amendments be disagreed to.

I think probably the most useful thing would be for me to make some remarks about these amendments en bloc. First, a little bit of background in relation to this matter. The government's 2010 election policy contained an undertaking that the government, if elected, would enact this legislation targeting declared drug traffickers. This legislation has been brought before the parliament in furtherance of that undertaking, given to the people of South Australia before the 2010 election.

This legislation was first introduced into the House of Assembly on 18 May 2011. It was debated on 28 July 2011, and at that time the honourable member for Bragg opposed the legislation and foreshadowed amendments. Can I say, again, that in this particular instance I think the unfortunate practice of the opposition only foreshadowing amendments in this chamber shows scant regard for the Independents in particular. They do not have an opportunity to be represented by anyone in the other place, so they do not even have an opportunity to understand what the issues might be. It also denies the government the opportunity to comment on the amendments, so if anyone in the other place were interested in finding out in detail what the government thought about the proposals they are denied that opportunity.

In any event, the honourable member for Morialta also opposed the legislation, and it moved to the Legislative Council on 28 July 2011. It was debated on 13 September 2011 and on 15 September 2011, and, on 27 September 2011, the opposition finally showed its hand. The shadow attorney in the other place came in with a swathe of amendments that were moved and by a narrow margin 22 amendments were passed.

An honourable member: Hear, hear!

The Hon. J.R. RAU: The honourable member says, 'Hear, hear!' Perhaps you may think that now, and I am glad that is on the record, but the effect of those amendments was to remove all the substantive measures in the bill and to leave place only for some incidental minor amendments to existing legislation. Indeed, the change was so drastic that the bill had to be renamed because it no longer conformed in any way to the original bill that went into that house.

On 28 September last year the House of Assembly considered the amendments from the other place and then, of course, parliament was prorogued. On 14 February (perhaps hoping for some good feelings in the chamber; I do not know what) standing orders were suspended and the bill was reintroduced into the House of Assembly in its original form. On 15 February it went back to the Legislative Council. On 15 March this year the second reading debate began again with the opposition, led by the shadow attorney in the other place, opposing all the substantive measures in the legislation.

Ultimately the vote when taken was 8:9, with four people not being present by reason of pairs. Again the opposition moved and passed 22 amendments, the effect of which was to again remove all the substantive measures and to leave only the incidental changes, and that is the legislation that has been brought back to us today. The reason this version is not acceptable is simple: it again cuts the legislation to pieces and leaves intact only two small associated parts. It removes any reference to the main part of seizing the assets of convicted drug dealers—that, of course, being an election pledge.

An honourable member: It was a good one.

The Hon. J.R. RAU: It was a good one. That is the historical background to this particular piece of legislation. I want to make a few things very clear to the house. First of all, the main issue in terms of crime in our society one way or another gets back to drugs. Whether it is housebreaking, violence or forms of abuse that occur in many cases to families and children, an enormous proportion of it gets back one way or another to drugs and the misery wreaked by drugs on our community.

Why is it that people are involved in the drug trade? Is it because it is great fun, is it because it enhances your standing in polite society, or is it because you can make a lot of money out of dealing in misery? Of course, we all know the answer to that question: it is about making money. Money is the incentive. People would not be trading in drugs if there were no incentive, and that incentive is money; just like people trading in any other form of contraband, the incentive is money.

What does this legislation attempt to do? What the legislation attempts to do is to say to a person who is involved in the drug trade, 'If you become a commercial drug trader and are convicted, we are not only going to put you in gaol but we are going to take away from you all the gains you have made out of this process. That will be a clear message to you, it will be a clear message to other people who you might have in your orbit who might be looking at the same sort of career move,' and it says to the community that we, as parliamentarians, will not tolerate people who trade in drugs profiting from this evil trade.

Just think of this: at the end of the process, when a person has gone to gaol for a couple of years and maybe paid a fine, it must be considerably more comforting to know they can go back to their nice home, enjoy the assets they have been able to accumulate over perhaps some considerable period of time when they were not caught, and enjoy quite a pleasant lifestyle while still living off the proceeds of their drug trade.

There is a clear difference between the government and the opposition on this point. Our position is very clear: they should not be able to continue to enjoy the profits of their illegal, immoral, objectionable behaviour. The opposition, on the other hand, thinks that is okay because it is too tough to take the proceeds of their ill-gotten gains away from them. It is okay to gaol them, and it might be okay to put a fine on them, but for goodness sake, don't take their assets away from them; that would be terrible.

The Western Australian government has, for some years, had legislation similar to this in place. I can indicate to members of parliament that in any one year the number of people to whom orders of this type have been made since it came in in 2004-05 has varied between 65 and 110; that is all. During those various years, the amount of money received by reason of these orders has varied between a low of $1.22 million in 2005-06 to a high of $10.5 million in 2009-10. Measure this against the cost of illicit drug use in Australia, which was estimated to total $8.2 billion in 2004-05, including the costs associated with crime, lost productivity and, of course, health care.

Let's not forget that the insurance industry defrays the cost of all those burglaries across our whole community. This has cost of living impacts on people who are not even the direct victims of these criminals.

Ms Chapman: Like the carbon tax then?

The Hon. J.R. RAU: I think that is a very frivolous way to treat a serious matter. Illicit drug use in the previous 12 months has risen from 13.4 per cent of the population aged 14 and over in 2007 to 14.7 per cent in 2010. A small number but not statistically insignificant. The rise was mainly due to an increase in the proportion of people who had used cannabis, pharmaceuticals for non-medical purposes, cocaine and hallucinogens. These drugs were perceived as being more easily available and accessible in 2010 than in 2007. There is a relationship between some health conditions and recent use of illicit drugs, and the Minister for Health and Ageing, I am sure, knows a lot more about this than I do.

There was a statistically significant rise in the proportion of recent users with a mental illness between 2007 and 2010. The diagnosis or treatment of a mental illness was much more common in those who had used an illicit drug in the past 12 months, or in the past month, than those who had not used in the past 12 months. Here we have, again, another defrayed cost. Our public hospitals, our drug and alcohol treatment services, Medicare, everybody who pays private health insurance: you get to pay for this too. It is not the person who has had their TV pinched who is the only person paying for this.

Illicit drug users had higher levels of psychological distress than non-users as well. Crime statistics relating to illegal drug use between 2007 and 2010: statistically, there was a significant decrease in the proportion of people aged 14 or over experiencing any incident related to illicit drug use. I turn to the particular amendments proposed by the opposition in the other place. On 16 May 2011, the opposition spokesman in the other place said:

This Labor government is more concerned with press releases than effective laws. We want to see real action, not more spin.

Honourable members: Hear, hear!

The Hon. J.R. RAU: I am glad I heard the 'Hear, hear!' That is good. I quote:

The opposition considers that all organised crime is a problem, not just crime that profits from drug trafficking. Labor claims the new laws will focus on drug traffickers, only one part of organised crime.

Well, it is the biggest part by a country mile. This is almost ludicrous:

They, the government, are saying to Adelaide's underworld that as long as you don't traffic drugs Labor doesn't care.

'Puerile' is a word that comes to mind quickly. This drug trade is a significant element, the most significant element, of organised crime. This bill is what the government is trying to do, and it is being frustrated by members of the opposition in the other place, to tackle this part of organised crime. What is the opposition and the opposition leader doing? What they are doing is, through the opposition spokesman, saying to drug dealers: 'It's okay to come to South Australia and set up shop because we are not interested in taking you seriously.'

Mr Marshall interjecting:

The Hon. J.R. RAU: You may not like it, but sometimes the truth is uncomfortable. On 29 July of last year, the learned the Hon. Mr Wade said:

The policy is simply about appearing tough on crime. The AG cares more about finding the money to fill the budget gap than about justice.

I am robbing victims to pay for mismanagement. Who is robbing victims? What about all of these drug traffickers? What about them robbing the victims? What about all of the people who are paying insurance premiums? What about all of the people who are paying increased health care costs? What about all of the people in drug and alcohol treatment services? Why are they there? They are there because of drugs in our community. Why are the drugs in our community? Because you make a lot of money trading in drugs.

The cost-benefit equation that these people go through goes something like this: 'How many millions of dollars can I make selling drugs?' We get a number. 'What do I think the chance is of me getting caught?' You put a probability figure in there and then ask, 'What is the worst thing that can happen to me if I get caught?' You put that in and then you ask the last question: 'Do I get to keep most of what I have robbed off people?' The answer is, 'Yes, I do.' All we are asking to do is remove the last figure from that equation because, trust me, it changes the equation.

Mr Marshall: Why did you lose then in the upper house?

The CHAIR: Member for Norwood!

Ms Chapman interjecting:

The CHAIR: Member for Bragg, member for Norwood, that is your last warning.

The Hon. J.R. RAU: There are a number of possible explanations for the opposition's conduct in the upper house. One of them is, in spite of having it explained a number of times, they just do not get it.

Ms CHAPMAN: Point of order: I think it is quite open for the minister to make a statement about why he thinks there should be an appropriate management of this legal amendment. However, our standing orders clearly make provision for no reflections on members of either house. At this stage, I think the minister now is bordering on a breach of that standing order because to reflect on those members in another place as to the basis upon which they have made a decision—they have made the decision. He may not like it. He is entitled to outline his government's case.

The CHAIR: Your point of order, please?

Ms CHAPMAN: The point of order is reflection.

The CHAIR: You actually said he was bordering on it, so you are not actually saying he went over it. By your own admission, there is no point of order. Please resume your seat.

Ms CHAPMAN: I have a second point of order and that is that, pursuant to standing order 122, the member has made offensive statements against either house of parliament, in this case the Legislative Council, by reflecting on their motive for making a decision. They have voted.

The CHAIR: What were the exact words spoken, member for Bragg?

Ms CHAPMAN: I would have to call on Hansard to give the exact words spoken, but it was words to the effect—

The CHAIR: No, if you are clear that the standing order has been breached, you should be able to recall the words.

Ms CHAPMAN: Well, let him go again. I will pull him up.

The CHAIR: Okay, thank you; no point of order. Attorney-General.

The Hon. J.R. RAU: Can I just make it clear for Hansard—because others may read this, I do not know—that I am not talking about the whole of the Legislative Council. I am talking about those people who are members of the opposition and slavishly follow Mr Wade's lead in that chamber. That is who I am talking about—not the whole Legislative Council.

Remember, that they are in the Legislative Council and they are in this chamber on the basis that they would be an alternative government in two years' time. We are entitled, on behalf of the people of South Australia, to expose when their behaviour as a group that would be in office, falls way below the standard that ordinary members of the community would expect, and that is exactly what is going on.

As I said, there are a number of possibilities. One is that they do not get it. Hopefully, after reading things a few times, we can exclude that as the continuing motivation. The second possibility is that, as has been suggested by many significant commentators in the Adelaide media, they have a great similarity with that famous chocolate product, the Ferrero Rocher—a little bit crunchy on the outside but very, very soft in the middle and soft on crime. They are soft on crime to the point where they are more concerned with the assets of convicted drug traffickers than they are with keeping the community safe by denying these people the incentive that drives them to commit their crimes.

This legislation also provides however, another element which is a part and a complement to the government's provisions in many bills that are before the parliament now to try to encourage people to break the code of silence because the biggest single enemy our police have in gaining convictions of these people is the code of silence. You cannot get a conviction without evidence. The reason people do not give evidence is either because they are fearful or because there is nothing in it for them.

In many pieces of legislation we have put before the parliament in the last few weeks we have attempted to deal with both of those questions; that is, people being fearful and people feeling there is no point in them giving evidence and assisting the courts. This piece of legislation contains an important provision that says if these people who have been convicted of severe drug offences and are facing forfeiture orders at last repent, come forward, speak to the police, speak to the DPP and dob in another crook or, even better, a bigger crook, then the court has the power to lift the burden of these orders off them.

These orders are not even inevitable. They are only inevitable in two circumstances: you commit the crime—you do not have to, but if you commit the crime that is step 1; step 2 (because you get a second chance) is that, even if you commit a crime, if you want to dob in people who are involved in the business and if you want to help the police and the Director of Public Prosecutions, the court can lift the burden of this confiscation order off you. It is entirely up to you.

In the two times this legislation has been to the other place, the government has not been offered any alternative. No compromise, no matter how ridiculous, has been offered—nothing. The opposition in relation to this matter has demonstrated that it is all care and no responsibility. It is the classic sheep in wolf's clothing: soft on crime, weak on these issues because certain obsessions that occupy certain minds within the opposition in the upper house consider the material assets of convicted drug traffickers to be so sacrosanct that they should be preserved in the face of community outrage.

I am happy to continue this discussion because I know and eventually members of the opposition will get to feel where the community stands on this issue. This is not the only bill that your party room is tearing to shreds. It is not the only bill where your party room is siding with the soft centres, the soft on crime mob, and trying to make it easy for people engaged in criminal activity.

Only last week, we had the outrageous situation of the Police Association having to go public because of concerns they have about what your party is doing to criminal intelligence legislation in this parliament. It is so frustrated that it has gone public. The Police Association do not go public on issues like this at the drop of a hat. Before the association did that, senior police officers briefed certainly Mr Wade and I believe the member for Bragg and explained to them over and over again how important this legislation was for SAPOL to do its job, to keep criminals out of licensed premises, to keep criminals out of the security guard industry and to get weapons prohibition orders against criminals.

In the most breathtaking, audacious statement I think I can ever recall since I have been here, the shadow attorney-general criticised SAPOL for not having sought and obtained weapons prohibition orders on certain named particular individuals, and beat SAPOL up. We know the reason SAPOL has not been able to do that is that this same individual has steadfastly refused to pass the legislation SAPOL needs to be able to do the job. Many years ago, there was a chancellor of a European country who said something to the effect of, 'The bigger the fib, the more likely it is to be accepted.' I have to say: to criticise SAPOL for not issuing weapons prohibition orders, when you are the very reason they are not doing it, does take a bit of audacity. I would say that takes a lot of audacity but, nonetheless, that is what is going on.

In relation to the legislation which has yet again been filleted in the upper house by the opposition, we have a community consensus that this sort of legislation is required. We have a government that took this program to the last state election and was re-elected on this program. We have SAPOL supporting this, as well as the DPP, PASA, Family First, the Hon. John Darley and the community; and we have a state government in Western Australia that is very happy to have similar legislation and very happy to have the dollars rolling in from these characters—

Mr Gardner: So that's what it's all about?

The Hon. J.R. RAU: Yes, it is all about money. Ding! The penny has just dropped! This is a moment, and I am going to savour it. The penny has just dropped. It's all about money! Got it! Hold that thought, please. In fact, I am happy to stop talking for a minute while you hold the thought and go and speak to Mr Wade; and until you come back we will not go anywhere, I promise. But hold the thought: yes, it is all about money—the money being collected by drug traffickers from their trade which, as far as the opposition is concerned, they should be entitled to keep, even after they are convicted. That is what it is about: that is exactly what it is about.

I can indicate that, as far as I am concerned, having been through the experience of what is described I think in the constitution as a deadlock conference, unless there appears to be something quite new and fresh about the place, I do not hold much expectation that a deadlock conference ordered from here at this present time is likely to yield any worthwhile result.

Therefore, my request of the chamber is that we send this matter back to the Legislative Council: we send it back to them with a clear message that their amendments are not acceptable. We ask the Legislative Council to reflect on their position and to see if there is anybody there in the opposition, or elsewhere, with the maturity to reflect on whether this really is the best thing for our community. Those of us on this side of the house do not believe it is.

At the end of this, I will be asking that this be sent back to the place where it was—I will use a different word, a better word—eviscerated.

Mr Pengilly interjecting:

The Hon. J.R. RAU: Eviscerated. The Minister for Health knows what that is. That is what happened to this. It needs to go back there. They need to reflect again on what they are doing. This is about taking the incentive away from serious criminals who are convicted of serious criminal offences; taking the incentive away from them to continue to perform that activity; and putting a big incentive there once they are caught to actually assist the police with information that may lead to the prosecution of other drug offenders. That is what it is about. That is in the community interest, and I can indicate that the government does not intend to let go of this issue.

The CHAIR: So, your motion is, that the amendments made by the Legislative Council be disagreed with?

The Hon. J.R. RAU: Yes.

The CHAIR: The whole lot?

The Hon. J.R. RAU: The whole lot. If necessary, and I do not know whether I move this now or I foreshadow it, but it needs to go back from whence it has come, with a short note saying whatever the short note needs to say, in parliamentary parlance—

The CHAIR: We will deal with that as a separate motion. Member for Bragg.

Ms CHAPMAN: I note the government's intention not to accept the amendments as presented from the other place, in those circumstances that the bill be returned subsequent to a vote rejecting those amendments. That, of course, is the only course open to the minister, so I am not sure that it is presented as any alternative. He either accepts them or he does not. It is pretty simple. It goes back.

Some days, I come into this place and there is healthy debate; some days I come in here and you feel like you have been whipped and thrashed and belted and knocked down and the stuffing has been knocked out of you, and you wilt under all of that weight of lengthy argument and considered debate and powerful submissions and persuasive argument. This is not one of them.

Members interjecting:

Ms CHAPMAN: I feel like I have been thrashed by a wet lettuce leaf. I think that presentation was not only insulting to the members of another place—who are perfectly entitled under our bicameral system of parliament to consider in their own deliberations a determination of these bills; that is their constitutional obligation; that is their individual right as members of that house—and to not only reflect poorly on the vote (of it being nine to eight or something) and speaking in a derogatory manner about that vote, but to also suggest that each of the minds of the members of the council who voted in that way in some way are in disorder, I think is a very poor reflection on the Attorney and clearly also a reflection on the other place.

Sometimes the Legislative Council makes decisions that members here are not happy with. That is their right. That is their entitlement. In this instance they have made a decision of which the Attorney-General is not happy. He is like a little boy, spitting the dummy and calling a tantrum and jumping up and down when he does not get his way, but that is the parliamentary process and that is what we need to consider.

Fundamentally, the opposition and, it appears, some other members of the Legislative Council, take the view that this course of action in dealing with drug traffickers is not the way to go. Clearly, we have an illicit drug consumption and trafficking issue in this state. As I understand it, we are still the leaders in marijuana production in the country, and we come very close at least with amphetamines.

I hasten to add, it is not quite the same level of seriousness as appears to be in other countries. Just this week I read of an organisation in Mexico, and the biggest haul ever of amphetamines, in a manufacturing establishment in which 15 tonnes of amphetamines had been confiscated, and where there had been substantial precursors, product and equipment ready for the making of amphetamines. What they do in Mexico in that instance is to shut down the facility and go and catch the crooks. They actually deal with the issue, as serious as it is, and you can obviously read about it at the international press level at any time.

That is not to say that ours is not a serious problem. Relatively, one may argue that it is not anywhere near the seriousness of other jurisdictions. However, for those of us who want to ensure that our children not only do not get into that type of activity but are not the victims of those who traffic drugs, it is important. We look at any idea that the government comes up with which will help deal with the issue and manage the situation in our jurisdiction. We support many of the things that are raised. We may raise concerns about the effectiveness of them but, nevertheless, we support them.

In this instance, we consider that the present law is totally adequate. Just because the police or any other law enforcement agency might want to make the process easier on themselves, we want to make sure that we strike a balance. The real motive of the government is exposed by the fact that they have decided to attempt to attach their tentacles onto a pool of assets and money which they currently do not have access to. They are not going to place it in the victims of crime fund, as is done with other confiscated assets, but in their own pockets. Why? Because at present their contribution to the administration of courts and even to the building of a reasonable facility for our most superior court in the state, the Supreme Court of South Australia, is so appalling, so bereft of any commitment and so inadequate that it really reflects poorly on this government.

If the Attorney-General needs extra money, there is no point bringing in pieces of legislation that will in some way harvest an extra pool of money that he is going to use to deal with his own financial mismanagement. Rather, he needs to go down to the Treasurer's office and say, 'This is a valid and important area of service provision in the state of South Australia and I need some adequate funding and capital allocation for the purposes of support.'

We will not be party to or complicit in bad law just so the Attorney-General can remedy a defect of his own balancing of the books and his own failure to provide for these services. We can go on at length about why it is necessary to protect the victims of crime and why it is necessary to ensure that, if funding is available, it is used to provide adequate facilities for people who are called up as witnesses in the prosecution of crimes in our courts.

One other area that the Attorney has touched on indicates, I think, how far removed from the real world the Attorney is on this issue. The Attorney quoted material that implicates the consumption or use of drugs that are at least partially responsible for the development of mental health conditions. That is well known, Attorney. I do not know where you have been for the last 20 years but, if you go back 30 or 40 years to when you were a young person, people smoked pot and did not think it was much different to a cigarette. That is fine; there would be many people in this chamber who lived through that era. However, for the last 20 years we have been receiving information at an ever-greater rate about the significant link between drug use (or misuse) and mental health problems, particularly through the use of illicit drugs. Of course, some relate to the abuse of prescription drugs but, nevertheless, the link between sustained and consistent marijuana use and schizophrenia and some areas of depression is very well documented.

I have referred to these occasions myself in the debates in this house, including the government's decision to strip down and sell off 42 per cent of the Glenside Hospital and then cobble together a building for mental health and all the drug and alcohol services for acute care in this state in the corner of the Glenside Hospital. I have pointed out in this chamber many times how disgusting I think that decision has been and how important it is that we provide the support—as a community but also the government, particularly, in funding it—to remedy, repair and support those who are victims of this.

Those of us on this side of the house are concerned about the effects of illicit drug use, and we are concerned about the cost to the community, and to the families who are directly affected, in addition to the broader costs of insurance, health care and so on. But we will not excuse a sloppy government in the prosecution of people who are involved in drug trafficking—and they have a myriad of laws to do that—or support legislation designed entirely to profit the government by adding to its coffers to provide court services, which are woefully inadequate at present.

We thank the Legislative Council for giving consideration to this bill, for retaining portions of it which we think are important reform and amendment of the legislation, and for removing from it sections which are clearly offensive and an attempt by the government to get that financial gain. We thank them for doing that. Obviously the government has the numbers in this house and, in the usual practice, it will send it back to the other place. In due course, we may have a deadlock conference. That may be asked for in due course; it cannot happen today, but we need to send that message back.

I note with interest that the Attorney-General has really foreshadowed an indication on his part that he does not think a deadlock conference would work anyway, down the track, and that in some way this is a process that is completely unnecessary now because it will not work. Well, this is the process that we go through. On the other hand, he has the option to simply withdraw the bill. He may do that; he may spit the dummy, pick up his bat and ball and go home, and just decide that he is not going to negotiate this. As much as he thinks it is important, he is just going to say, 'Oh, well, if they don't do what we want we aren't going to play their game and we're just going to go home.'

He may take that attitude, but that would not be in the interests of South Australia. It certainly would not be in the interests of the democratic processes of this parliament, and I hope that he reflects on that and comes back with a more responsible attitude that befits the first law officer of the state.

The CHAIR: Attorney, if you speak you close the debate.

The Hon. J.R. RAU: There are those who would say that would be a good thing, so I do close the debate. Members will be pleased to note that I do not think I can add to anything I have said before.

Motion carried.

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