HANSARD
SITTING CALENDAR
SEARCH
LIVE BROADCAST
Hansard Dynamic Subject Index
House of Assembly - Fifty-Third Parliament, First Session (53-1)
2014-06-18 Daily Xml
Contents
Pdf Xml

Bills

Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 7 May 2014.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:40): I rise to speak on the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill 2014. This bill was tabled by the Attorney on 7 May, and has an interesting history. It is fair to say that, in the development of the confiscation of assets acquired during, or relevant to, criminal activity as an instrument to break down the opportunity and desire of those to profit from crime, the Liberal Party has in fact consistently promoted and supported legislation to confiscate assets where they have been specifically proceeds of crime, instruments of crime (even if they were lawfully acquired), and for the purpose of unexplained wealth.

However, this bill seeks to take matters a step further; that is, to seize assets unrelated to a particular crime, even where a person can prove that they have been legally acquired. A similar Northern Territory bill was struck down on constitutional grounds, and it was only in April of this year (two months ago) that a High Court decision removed those constitutional doubts. What we now know is that this type of law is constitutional; we are now looking afresh to see whether in fact it is good law, and whether it could be made better.

We will be supporting the passage of this bill in this chamber today. Frankly, we are yet to be convinced that the bill, if passed, will be effective at achieving the government's stated goals of deterring major drug offenders but, as I have indicated, we have consistently supported legislation where it has been within the parameters as stated. To open up this new area of exposure to confiscation, we do need to be fully satisfied on a few more matters.

Let us consider why we are here. Having established in the past few years and supported a number of developments in confiscation laws, which have been consistently applied and developed across the country, we are here because of the government's claims during the 2014 election as to what it would be doing. To consider that, let us look at the Labor Party's 2010 serious crime election policy. Then they stated:

This proposal will amend the Criminal Assets Confiscation Act and Controlled Substances Act to target persistent or high-level drug offenders to provide for the total confiscation of the property of a 'Declared Drug Trafficker'. This deterrent is an effective way of disrupting and hindering the activities of serious organised crime gangs by removing or reducing profits. New powers will be given to the Director of Public Prosecutions to allow criminal drug dealers who commit three prescribed offences within a span of 10 years to be 'declared' a drug trafficker.

Under this proposal, which targets high level and major drug trafficking offenders, all of a convicted offender's property can be confiscated, whether or not it is established as unlawfully acquired and whether or not there is any level of proof about property at all. Property and assets could also be restrained pending prosecution of matters before the court.

The legislation will attack repeat drug offenders. The offences that will attract the declaration if committed 3 or more times within a span of 10 years include:

Trafficking in controlled drugs;

Manufacture of controlled drugs for sale;

Sale of controlled precursor for the purpose of manufacture;

Cultivation of controlled plants for sale;

Sale of controlled plants; and

Any offence involving children and school zones.

That is what the Australian Labor Party promised in the 2010 election policy. Bills were introduced in the last parliament to implement that policy. The bills, however, went further than the policy in that they allowed confiscation on a first offence and diverted confiscated funds away from the Victims of Crime Fund.

As a result of Liberal and crossbench opposition in the Legislative Council, the bills were not passed, so the only group supporting this extended application of legislation, far beyond the policy even announced in the 2010 election, was the Australian Labor Party. It is fair to say, therefore, that the Liberal opposition was not alone in this. There were concerns raised by other members of this parliament and, accordingly, they failed.

The Labor Party then had further election policies for the election in March this year. In this year's election policy, the Labor Party said that they would continue to pursue the criminal asset confiscation changes and 'in addition, we will give the court the power to prevent the offender from owning property for up to five years'. Now we were to have their original position plus this additional restriction on certain offenders not being able to own anything for five years.

Let's look at the history of what is happening with the legislation so far. The first bill on this matter was introduced on 18 May 2011 in this house. On 27 September 2011, it passed through the Legislative Council with amendments, which the government did not accept, and subsequent to that, there was the prorogation of the parliament. Then there was the second bill on 14February 2012. The government suspended standing orders in this house to reintroduce the bill. The next day it passed this house. On 15 March, again, it was passed by the Legislative Council with the amendments that they had promoted and supported.

Then, again, on 3 and 4 April that year, in the House of Assembly, the government rejected the amendments and, that was transmitted to the Legislative Council. The result was that the bill was withdrawn. Then we have the third bill. On 4 October 2012, the Attorney-General wrote to the then shadow attorney in another place (Hon. Stephen Wade) to advise him that he intended to suspend standing orders in the House of Assembly to introduce two new bills on 16 October 2012 to supersede the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill 2012.

On 16 October, as indicated, the prescribed drug offenders bill passed this house. On the same date, the miscellaneous Criminal Assets Confiscation Act amendments passed this house. Then, on 31 October 2012, the miscellaneous provisions were passed by the Legislative Council, and on 12 November 2012 the miscellaneous provisions received assent. On 14 November 2013, the prescribed drug offenders bill reached the end of the second reading stage in the Legislative Council, and again that bill followed the fate of the previous two bills presented in 2011 and early in 2012, respectively.

What essentially occurred at that point was that the government put some matters which were uncontentious, and which we supported as having some merit, into a bill which I have referred to as the 'miscellaneous Criminal Assets Confiscation Act amendments', and they followed through the passage of success in being approved by this parliament. The offensive aspects that were in the second bill, of course, met their fate as indicated. Now we have, of course, the fourth attempt, by introduction to the House of Assembly last month of this bill.

The bill does what? It proposes to allow the confiscation of commercial and repeat drug offenders' assets to the point of bankruptcy, even where those assets have been lawfully acquired, as I have indicated. That is all consistent with what the government announced in 2010. Under the bill, if an offender has committed a single commercial drug offence, or three or more specified drug offences within 10 years, they would be liable to be declared a declared drug trafficker and subject to the confiscation regime.

The prescribed offences are to include trafficking in controlled drugs, manufacture of controlled drugs for sale, sale of controlled precursor for the purpose of manufacturer, cultivation of controlled plants for sale, sale of controlled plants, and any offence involving children in a school and school zones. Each of those were as published in the 2010 Labor Party policy. The Western Australian and Northern Territory jurisdictions have schemes similar to this. In the last seven or eight years of the scheme in Western Australia, as I understand it, nearly 600 declarations have been made and over $35 million confiscated.

Given that these figures also include the proceeds of crime confiscated in those cases—so it is a total amount—the average confiscation is only $59,000. I think it is reasonable, therefore, to deduce that a number of relatively minor operators are being affected, if we are to rely on the data coming out of Western Australia. There are a number of primary offences under South Australian law that already carry a fine of up to $500,000 and life imprisonment. I will not repeat them all, but a number of those already have a very significant penalty.

During the second reading contribution to the bill in 2012, the Attorney-General emphasised the capacity for forfeiture to be varied if drug offenders have cooperated with law enforcement agencies. Such a scheme runs the real risk that, if the authorities become the extorting party, accused persons will be threatened with bankruptcy if they do not comply with the demands of the state, and that raises some serious matters.

As I have indicated, questions of constitutionality were raised in the previous debates. The original concerns, which have been resolved by more recent determinations (and one only this year), were raised by a number of stakeholders, including the opposition, during the previous debates because the fundamental question was whether the legislation offended the Kable principle. Again, the Attorney-General, in his second reading on this bill in the House of Assembly when it was presented some months ago, said:

The idea that all of the property of certain drug offenders (described in the Bill as prescribed drug offenders) should be confiscated, whether or not it has any link to crime at all and whether or not legitimately earned or acquired, originated in the Western Australian Criminal Property Forfeiture Act 2000.

He went on to say:

The Northern Territory Criminal Property Forfeiture Act contains very similar provisions, obviously modelled on the Western Australian Act.

At that time, the Law Society was of the view that the bill may infringe the Kable principle by attempting to compel the court to comply with an administrative decision made without court consideration. In doing so, the administrative decision-maker exercises powers usually reserved by the court. On 17 October 2012, the Supreme Court brought down its decision in Bell v Police, in which the hoon driving legislation was impugned. On 29 October of the same year, the then former shadow attorney-general wrote to the Attorney-General in the following terms:

I note the Chief Justice's comments in relation to the constitutional validity of laws which impinge on the judicial integrity principle. In particular, his comments at paragraph 78 of the judgement:

'Questions of incompatibility of the judicial integrity implication loom larger when the legislative scheme, instead of proscribing specified conduct and providing for penalties or other orders in the case of breach, authorises, in prescribed circumstances, executive and judicial action to derogate from the otherwise lawful freedom of action, or property rights of individuals.'

The letter to the Attorney goes on to say:

The opposition is concerned that both the Criminal Assets Confiscation (Prescribed Drug Offenders Assets) Amendment Bill 2012 and the Criminal Assets Confiscation (Misc) Amendment Bill 2012 may impinge on the judicial integrity principle.

Following discussions in the Liberal Party Party Room, I write to seek an assurance from the Government that Crown Law's advice is that neither of these bills infringe the judicial integrity principle.

On 28 March 2013, the Northern Territory Court of Appeal, in the case of Emmerson v The Director of Public Prosecution & Ors (2013) NTCA 04, held that the Northern Territory acts impermissibly compromise the independence of the Supreme Court, attracting the principle of Kable v The Director of Public Prosecutions. The acts were held to be unconstitutional and, as I noted earlier, the government has said that these laws we are debating today are very similar to the Northern Territory scheme. On 11 October 2013, the High Court gave special leave for an appeal on the case, and the appeal was heard early this year. Finally, in April this year, the High Court confirmed the constitutionality of the legislative scheme.

I will not go into the review of the judgement, but it is fair to say that up until that time the Liberal opposition was not alone in its concerns raised in regard to this. The government has a history of jumping into legislation without being clear on the constitutionality, as we faced with bikie legislation, and the humiliation that I think fell upon this parliament as a direct result of the government's insistence on prosecuting a series of legislation. We of course then became the butt of taunts by the bikie community, and that is not an acceptable situation for me, and I do not think it should be for members of this parliament. We do expect the government to provide its best efforts to getting things right and, if it does not or will not or cannot present support for the basis of the challenge with some legal underpinning, then we are entitled to raise our concerns.

The second issue for us, aside from the constitutionality which has now passed as an impediment to this type of legislation progressing, was the whole question of fairness. In the second issue one needs to remember that the bill is aimed to confiscate assets of certain drug offences to the brink of bankruptcy, even if a person could prove that the assets were legally acquired and that they were unrelated to crime.

This bill is fundamentally different from current confiscation laws, because it entitles the state to confiscate assets even if the citizen can demonstrate that they were lawfully acquired. Accordingly, the confiscation is more in the nature of a fine and could significantly exceed the penalty for the particular offence. If the government contemplates penalties for an offence which are the subject of this type of approach, then we say that the appropriate course is to increase the penalties. Let's have the debate on that.

Let's consider the data to date for drug offence fines under the Criminal Assets Confiscation Act 2005, which is the early legislation covering confiscation of assets associated with the crime itself. Back in 2005-06 the amount deposited to the Victims of Crime Fund was $807,299; for 2006-07, $1,222,116; for 2007-08, $1,686,520; for 2008-09, $1,408,372; for 2009-10, $924,728; for 2010-11, $2,219,598; for 2011-12, $2,275,170; and for 2012-13, $2,320,296.

Under the Criminal Assets Confiscation Act 1996, the revenue then received—a different ultimate deposit—in 2003-04 was $1,502,615, and in 2004-05 it was $1,009,485. The levying of fines and monetary penalties in the years preceding that in 2002-03 were $666,786 and in 2001-02, $678,674.

Over the lifetime of this government, we have had the original levying of fines which still apply but which we now have supplementing the 1996 Criminal Assets Confiscation Act and the effect of that for the first few years of this government, then the Criminal Assets Confiscation Act 2005 and the years subsequently.

To date, if one looks at that data, it is fair to say that governments of all persuasions have avoided income-related fines; that is, they are fixed amounts. Obviously, the financial circumstances of the defendant can be taken, and usually is, into account, but they are not initially set based on the certain disclosed or taxable income of the offender.

The circumstance of the offender, therefore, can be taken into account in sentencing, and the law should not discriminate between people on the basis of their income or assets. That has been the general principle to date. Applying criminal assets confiscation to the seizure of lawfully obtained assets, therefore, is effectively another form of taxation. In dealing with crime, bankrupting offenders may drive offenders deeper into crime and increase the prospects that their children will be embittered and also embrace a criminal career.

That is the downside of this. It always sounds good to think that we are going to come on tougher and harder, and that when you have reached a certain threshold you should be labelled as someone for the purposes of then attracting a whole lot of other penalties. It all might sound good in the heat of an election, but one always has to consider the downsides. It is fair to say that the Law Society had also looked very seriously at this matter and expressed its opposition to the bill 'in the strongest possible terms'. The society said:

The bill is inimical to a free society which applies the rule of law and encourages the citizen to be self-sufficient. To say that it is draconian only tells a fraction of the story. A citizen should not be deprived of his or her lawfully acquired assets because he commits an offence.

They raise a number of concerns in relation to the bill, obviously the question of legality, and we have canvassed that, and the recent High Court decision deals with that. Again, in their submissions they raised, unsurprisingly, the embarrassment we faced as a result of pushing through with bikie legislation only to get egg on our face.

The second area of concern for them was a lack of nexus between the offence and the assets seized. There are lots of consequences, some of which I have canvassed in the views of the opposition and our concerns. The third is the additional punishment. The scheme, they say, provides for a punishment over and above that for the actual offending. Again, I think that is consistent, but expressed slightly differently in our position and that is, if the penalties are not tough enough then we should have a serious discussion and debate about that.

The fourth area was discriminatory. They felt that it was discriminatory against citizens who are legally industrious and acquire wealth. There is some continuity with our view, but it would not be of itself a matter for us to not support the legislation. However, here is where a major concern is raised, and that was when they raised the question of innocent parties, 'where the seizure of assets may deprive a citizen's family of assets regardless of whether they are dependants'. As Justice Gageler, in the Emmerson case said:

Difficult issues might arise as to the effect of forfeiture on interests of other persons. Those issues can be put to one side. For present purposes, it is sufficient to focus on the most straightforward operation of the provisions to forfeit property wholly owned by the person who is declared to be a drug trafficker.

That has also been referred to at some length in the contribution of the Attorney. The sixth concern for the Law Society was the due process, the current legislation entitling citizens facing confiscation to appeal to a court, and there was no provision in that bill for that right to occur.

The scope of the bill was to cover both the convicted drug trafficker as a repeat offender, who is convicted on a third or more offence, for nominated offences within a period of 10 years. The second area is the convicted drug trafficker who is a major offender, whether they are repeated or not. So, if it is a really, really serious drug crime, then you only have to do it once, and in that situation if a major offender is caught in the definition, if he or she is convicted of a commercial drug offence, the offence could be a first offence, as I have said, and what the Law Society called 'low level offending'. So the legal stakeholders advise that the bill would catch a much lower level of offenders than currently applies in the Western Australian legislation.

Under the Criminal Property Confiscation Act 2000 in Western Australia, a person declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981, is liable to have all property that the person owns, effectively controls or gave away before the declaration was made, confiscated. Under section 32A(1) of the Misuse of Drugs Act 1981, drug traffickers are those who have committed two or more serious drug offences or a single serious drug offence in respect of a prohibited drug in a quantity more than the prescribed amount or have committed a relevant drug offence and is a member of a declared organisation. A relevant offence includes intending to sell, manufacturing or selling prohibited drugs, cultivating or selling a prohibited plant and possessing more than a prescribed quantity of category 1 or 2 drugs, and there is a table of those that are to be applied. The third is the absconding accused.

I suppose the first question, really, that we need to raise is, if we are going to have this type of punitive treatment towards assets, even if lawfully acquired, of people who have committed a serious drug offence or, at a lower level, multiple repeat drug offences, why is this legislation not being applied to white collar crime or serious personal assaults or murders or child sex offences? There is any number of serious crimes which also attract up to life imprisonment for which we do not seem to have any explanation as to why only this category is captured.

The provisions in respect of the bankruptcy level are similar to those in Western Australia. The key difference between the proposed South Australian and the existing Western Australian models is that all property under the Western Australian system is confiscated, such as everything from washing powder to clothes, etc., whereas the South Australian bill only confiscates all property which would be usually taken if a person were to be declared bankrupt.

Those who are expert in bankruptcy law will know there is some provision for keeping certain essential chattels, tools of trade and a motor vehicle. I am not sure what is currently accepted as being within that broad principle, but the government has referred to Regulation 6.03 of the commonwealth Bankruptcy Regulations of 1996 which take as a broad principle:

Subsection 116(1) of the Act does not extend to household property (including recreational and sports equipment) that is reasonably necessary for the domestic use of the bankrupt's household, having regard to current social standards.

I am not sure what that is currently applied to. I only ever did one bankruptcy case in the 20 years of legal practice I had and that was to oppose the bankruptcy of a poor lady who had a shoe shop. Anyway, we managed to settle for about 10¢ in the dollar for some poor hapless creditors and her reputation was saved and she did not become bankrupt. As best I can recall, these are obviously tools of trade, domestic beds, basic domestic appliances, etc., that are necessary for basic living.

A lot could be said about the general application of the law, and it is sometimes not until these things are implemented that there is an exposure of often inadvertent and unintentional capture or consequence, which is only highlighted after some poor person or family have nearly had their lives destroyed. Unfortunately, this is exactly the sort of legislation where not only can it happen but it has happened. Whilst the government says that they are modelling legislation on what has been applicable in Western Australia, it is important for the house to understand that, in Western Australia, there was a case where an elderly couple, aged 81 and 77, lost their home that they had built 40 years prior to an occasion where their son had hidden cannabis in that property.

So, here is a couple who built their home, lived in it for 40 years, then their son hides cannabis in it and, as a consequence of that legislation—that legislation which we are modelling on here in South Australia—this couple, aged 81 and 77, were the subject of a seizure confiscation of that property. Is that fair? Is this what we are seriously trying to do to try to avert and deter people from engaging in crime, that we would make laws that would be cast so widely that we would capture people like that? I do not think so. You could ask anyone in the street in South Australia, 'Would you expect this legislation to capture senior people who had legally bought their home, built it, lived in it for their married life and then have a son who has obviously used it to store his cannabis supply?'

We on this side of the house have demonstrated that we will support the seizing of criminal assets, but we also need to make sure that law-abiding South Australians do not get caught up by dragnet laws. How do we, therefore, ensure that we target the criminals? There are some other aspects that we are considering.

On the question of unexplained wealth generally, a review of the execution of powers under the Serious and Organised Crime (Unexplained Wealth) Act 2009 by Mr Alan Moss indicated that no powers had been used under the act between 2010 and 2012. Mr Moss recommended that the act be amended to overcome serious obstacles inhibiting effective use of the act. Amendments were made in 2013 and certain powers under the act were used between 2012-13, including:

SAPOL's identification of persons convicted of a serious criminal offence, one of the triggers enabling the use of the investigative powers—that is section 12 of the act;

suspects narrowed to individuals suspected of being involved in the manufacture/dealing with illegal drugs or who are otherwise suspected of being involved in organised crime. A smaller number of individuals have ultimately been targeted;

extensive searches of corporate affairs, business names, internet and social media (all public information). Large number of 'notice to deposit holders' issued to financial institutions requiring disclosure of information about financial accounts held by individuals—section 13 of the act. Small numbers of warrants issued to financial institutions (that is under section 16) authorising seizure of documents and articles relevant to identifying, locating, tracing and valuing a person's wealth.

Let us see if they work: five years after Labor has enacted its outlaw motorcycle gang laws and a string of High Court challenges, not one gang has been declared outlawed. In 2008, the then Prime Minister said that Labor had given South Australia the world's toughest anti-gang laws. Now we have more gangs, more gang members and not one clubhouse has been bulldozed. I think a blow-up playpen application under a licensing court came before—

Mr Pederick: Mongols.

Ms CHAPMAN: From the Mongol club the other day. So, they are alive and well; they are even building playgrounds for children, it seems.

The third issue is the victims themselves. One clear outcome of Labor's proposed confiscation laws is that victims will lose. Labor's bill here before us would stop the proceeds of asset confiscation going into the Victims of Crime Fund and redirect them to fund government services, through a justice resources fund.

If ever there was ever a backflip on all the rhetoric I have heard in this parliament in the last 12 years on commitment to victims of crime—the need to prioritise their plight, to be listened to, to have a right to make submissions and be heard, to have any reasonable compensation when they are left in a financially parlous circumstance or where there has been some unfair offence to them or loss to their property—it is on victims of crime. The government has even appointed a Victims of Crime Commissioner to protect the interests of victims of crime.

I recall that the former attorney, now Speaker of the house, was passionate about this matter. Quite often, we had statements by him in the public arena where he would point out the significance of legal reform and policy announcements of the government that would have a direct beneficial impact on victims. I think that it is fair to say that the public expected that there would be some focus on victims.

I am deeply and bitterly disappointed to today that the current government has not followed through with all the rhetoric by making a speedy provision for those who have been victims of sexual assault in institutional care, after the very painful inquiry by the late Justice Mullighan, and the slow come kicking and screaming approach of the government to even consider lifting the cap of $50,000 on claims from the Victims of Crime Fund, while they watch the fund swell into a balance of over $100 million. So, the statements, unfortunately, have not translated to the direct benefit of those the government purports to be plaintively supporting.

It is of great concern that this Attorney, in bringing the third tranche of confiscation-type legislation to the parliament this time in this form for the fourth time that he persists in robbing victims of crime of what has been otherwise a priority of support. These moneys have been, I think, since the 2005-06 year, paid into the Victims of Crime Fund and not into general revenue. We have had considerable time (eight or so years) where this money has flowed into the Victims of Crime Fund.

Now the government wants to persist with a bill to take away that money and put it into general revenue. How disgraceful that it should be transferred to try to camouflage their own financial mismanagement and incompetence in balancing the rest of their books. We have consistently opposed the diversion of proceeds away from the victims of crime.

The other aspect raised is that the Director of Public Prosecutions (DPP) is proposed to be the body that will be in charge of enforcing this new law. The DPP is an office that has already had previous directors make statements about their incapacity to fulfil their obligations in light of budget cuts; some have been more outspoken than others, and some have been and gone in the time of this government. Nevertheless, the current director faces the fact that 10 Director of Public Prosecutions officers are set to lose their jobs by the end of this month under the current cuts that have been announced.

Clearly, the budget cuts make it hard enough to pursue the criminal charges, let alone chase down the assets under these laws. If the government is going to expect that the enforcement of this legislation will continue to be through the DPP's office (which will attract, in theory, more claims), then we will need to consider whether that is going to be achievable, or whether in fact the prosecution of criminals in their other principal role will be weakened or undermined as a result of taking on this new responsibility. It is disappointing that the Attorney-General has grandstanded on these new laws in the lead-up to the election while the Treasurer, who sits close to him on the front bench, is making deep cuts into the agency responsible for making those laws work.

The other matter on which we do need some answers—and perhaps we will have this in the committee stage—is why this bill, now brought to us for the fourth time covering this law, does not include the statements made by this Attorney in the 2014 election. I do not understand why the government made this extra promise during the heat of the 2014 election, which included that there would be a court-based discretion to ban the holding of property for five years—not only would you be confiscating lawful assets under this but, remember, they also made a promise in the 2014 election that they would have a five-year prohibition on being able to own property. It does raise some questions about why they have abandoned that election policy, and I look forward to hearing the government's answer.

In addition, the Victims of Crime Fund being the recipient, or the compensation at least flowing to victims of crime directly in some manner, of course may well be the basis of further amendment, and we are certainly still considering that. So, there will be a number of questions we need to ask during the committee stage but, as I have indicated, we will not hold up the passage of the legislation in this house. With that, I look forward to the committee stage.

Mr PICTON (Kaurna) (16:29): I am very pleased to speak on this bill, which I think is a very important piece of legislation for our criminal law in South Australia. I do not deny in any way that it is a very significant piece of criminal law and worthy of detailed debate in this house and the other place. I do not deny at all that it will be seen as very harsh by some and a very strong piece of legislation, but I do not shy away from that. I think it is a fantastic advance for our criminal law in South Australia.

It is yet another sign that this government is implementing an approach to criminal law that includes strong penalties and targets the worst offenders and criminal bosses. This has been an approach by the government since we were elected in 2002. The community expects government to put the safety and wellbeing of the community first and foremost and to take a very strong approach with regard to the most serious offenders.

Sadly, when we are talking about major drug dealers, often we are not talking about lone wolves or backyard operations. We are talking about very sophisticated criminal networks, often operating nationally and, increasingly, operating internationally. It is important to prevent criminal gangs from being able to build up these large self-funding empires where businesses are being covertly bankrolled by criminal proceeds. If there is not strong action taken in regard to the proceeds of crime, then despite whatever penal action might be taken in regard to an offender, the proceeds of a crime can continue to be used to reinvest in criminal trading operations.

The deputy leader, in her remarks, noted that she thought we should simply increase the penalty rather than enact legislation like this. I think that is the wrong approach, in that capital will still be available then. We need to deal with the capital that is available and can then be reinvested into other criminal organisations. If somebody is in prison for longer, that does not necessarily mean that that capital that exists through that person's wealth will not be used for criminal action.

The government brought this policy of asset confiscation of serious drug dealers to the 2010 election. It was supported by the community then. We introduced it three times in the last parliament. Three times it passed this house and three times it was rejected in the other place, so we are bringing this forward again and hoping that it will get passage through this house and that this time it will actually get passage through the other place as well.

This legislation is informing those in the drug trade that if they choose to become commercial drug dealers, they will be put in gaol and lose everything they receive in the process. The drug trade is the most significant element of organised crime in South Australia and we, as the government, must prove that we are taking this issue as seriously as it deserves to be treated. This bill grants new powers to the Director of Public Prosecutions to allow criminal drug dealers who commit three prescribed offences within a span of 10 years to be a declared drug trafficker. Power will be extended to confiscate assets of any extremely serious offenders, regardless of whether this is only the first offence this nature.

Extremely serious offences are outlined in the Controlled Substances Act as comprising trafficking, manufacture for sale, selling or possession with an intent to sell a large commercial quantity or a commercial quantity of controlled substances or controlled plants, and the cultivation of a large commercial quantity or a commercial quantity of controlled plants. I think it would be very difficult for anyone to argue that such offences are not extremely serious in nature. Whether an individual is a high-level trafficker depends primarily upon the amount of drug they have in their possession. The specific amounts are a result of a national consultative process and are based on expert police advice.

Legislation such as this is not a new phenomenon. It is a less dramatic version of similar laws operating in Western Australia and the Northern Territory. Under Western Australian and Northern Territory legislation, all declared assets are subject to forfeiture, including basic domestic goods such as children's clothes and kitchen appliances. The house will be interested to know that in the past few weeks, the Western Australian police have undertaken a crackdown on suburban drug dealers and users.

Over these few weeks, I am advised, they have laid charges for 43 drug-related offences, including seven charges of selling a prohibited drug. In Western Australia, the assets of serious drug offenders can then be seized, truly attacking the issue at its roots. However, in Western Australia nothing is left for serious drug offenders, not even their basic household goods. This South Australian bill incorporates measures to ensure that basic needs are still met for the individual whose assets are taken.

The prescribed trafficker must forfeit everything bar what a bankrupt would be permitted to retain. This allows a trafficker to maintain reasonably necessary household property, assessed with regard to present social standards, and also does not burden the state unnecessarily with minor household assets.

This legislation does not seek the detriment of families of serious drug offenders or the offenders themselves to a point where they lose every single asset. It aims to take away any benefit of engaging in criminal behaviour, yet it still allows the offender to retain their basic household property, such as a modest car, so that their families are able to continue working and living with basic assets.

This bill would place serious drug offenders in a similar asset position to a bankrupt person. It does not seek to punish the offender's family or place people in destitution. What it does do is ensure serious drug offenders are denied access to a life of fast cars, designer clothes and luxury properties that may have arisen during their involvement in organised crime. It would be worrying for anyone to suggest that the conditions of those who have been declared bankrupt should be worse than the lifestyle convicted serious drug traffickers are able to lead if they ever leave gaol, as is currently the case.

This bill includes the establishment of a justice resources fund, collecting the proceeds of the bill from this amended criminal assets confiscation scheme. This resources fund would then be directed towards courts infrastructure, equipment and services, funding for justice programs, facilities for dealing with drug and alcohol-related crime and monetary provisions for justice reform initiatives. So, money that is being used for criminal activity is now being turned around for a public good. It seems only reasonable that the assets of drug traffickers should be invested into measures to fight and reduce crime. The funding derived from the passage of this bill will work to further reduce crime within the state.

Some people, as I said, have seen this legislation as too tough, and that certainly has been the opposition's view in the past. I acknowledge that the deputy leader has said that she will support the passage of this bill through this house but is open to looking at amendments in the other place, and has raised a number of concerns with this bill, including that it is potentially too tough.

In my view, the truth is that the toughness of this bill reflects the truth that drug traffickers and manufacturers derive their assets from the trade, and they undertake money laundering activities to dissociate those assets from the crime. So, even while the opposition says that these people should be able to point to how those assets were supposedly gained legally, in my view, it becomes very difficult to disconnect how those assets are there from how they were actually obtained.

There is a simple solution to avoid being stripped of your assets: do not become involved in the drug trade. We must give our law enforcement agencies the ability to tackle the heart of the drug trade. This is not a bill to target minor offences. At the heart of this scheme is the central impetus to catch those involved in commercial or serious, repeated drug dealing.

Another important aspect is the allowance for an offender to avoid confiscation of assets where they willingly cooperate with the police. This is integral to encouraging criminals to provide information of any co-offenders or affiliated criminal organisations. With the assets of a convicted serious drug offender remaining of substantial importance to them, it is a clear incentive to work with the police in bringing down drug trafficking syndicates, attacking organised crime at its very core.

Three times, those in the Liberal Party have opposed this Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill in the upper house. One of the main reasons has been that they have said that it supposedly lacks legality surrounding it and constitutional legality. We now know from the High Court, in its case of Attorney-General (NT) v Emmerson, that this is not the case.

In that case, the validity of the Northern Territory provision for forfeiture of property owned by drug traffickers to be given to the government without the need for further court order was put into question. The High Court overturned the Northern Territory Court of Appeal and held that the Northern Territory laws, very similar to the ones being introduced under this amendment, were compatible with state and territory legislative power limits imposed under chapter III of the constitution.

Since the validity of the Northern Territory laws on this matter have been upheld by the High Court, there is no reason whatsoever for those opposite to think that this bill raises any sort of constitutional questions. Those opposite can no longer hide behind the shroud of arguments citing a supposed lack of constitutional validity in order to defend the supposed entitlements of serious drug offenders.

This government has always put the health and safety of the community as a top priority. In order to deal with criminal organisations we must deal with the core perpetrators of drug trafficking under harsh laws, as proposed by this bill. With this amendment, not only will drug traffickers be gaoled, there will not be a nice piggy bank of assets waiting for them when they complete their sentence.

This amendment seeks to bankrupt those who bankrupt our community. This government has always maintained that it will be tough on crime, and this bill allows us to tackle the problem of motorcycle gangs and high-level drug offenders head on, with strong punishments.

Mr PEDERICK (Hammond) (16:40): I rise to speak to the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill 2014. In giving some background, I quote from the Labor Party's policy from 2010 in regard to its Serious Crime election policy which stated:

This proposal will amend the Criminal Assets Confiscation Act and Controlled Substances Act to target persistent or high-level drug offenders to provide for the total confiscation of the property of a 'Declared Drug Trafficker.'

This deterrent is an effective way of disrupting and hindering the activities of serious organised crime gangs by removing or reducing profits.

New powers will be given to the Director of Public Prosecutions to allow criminal drug dealers who commit three prescribed offences within a span of 10 years to be 'declared' a drug trafficker.

Under this proposal, which targets high level and major drug trafficking offenders, all of a convicted offender's property can be confiscated, whether or not it is established as unlawfully acquired and whether or not there is any level of proof about any property at all. Property and assets could also restrained pending prosecution of matters before the court.

The legislation will attack repeat drug offenders. The offences that will attract the declaration if committed three or more times within a span of 10 years include:

trafficking in controlled drugs;

manufacture of controlled drugs for sale;

sale of controlled precursor for the purpose of manufacture;

cultivation of controlled plants for sale;

sale of controlled plants; and

any offence involving children and school zones.

Bills were introduced in the last parliament to implement that policy but were not passed as a result of Liberal and crossbench opposition in the other place. The bills went further than the policy in that they allowed confiscation on a first offence and diverted confiscated funds away from the Victims of Crime fund.

The opposition, along with the support of the legal fraternity, had three major issues with the bills in regard to constitutionality, fairness, and where Labor's bills aimed to confiscate assets of certain drug offenders to the brink of bankruptcy, even if the person could prove that the assets were legally acquired and they were unrelated to crime, and also the impact on victims and the diversion of the proceeds away from victims of crime.

In the most recent election of 2014, the Labor Party said that it would continue to pursue the criminal asset confiscation changes and, 'In addition, we will give the court the power to prevent the offender from owning property for up to five years.' During the 2014 election—only a few months ago—Labor failed to make the bills an issue. As has been stated earlier in the house, in April of this year the High Court confirmed the constitutionality of the legislative scheme in the Attorney-General (NT) v Emmerson. In regard to the current 2014 bill, the Attorney-General tabled the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill 2014 which confiscates assets of:

1. A convicted drug trafficker—repeat offender—convicted on a third (or more) offence for nominated offences within a period of 10 years.

2. A Convicted drug trafficker—major offender (whether repeat or not).

And a major offender is caught if he or she is convicted of a commercial drug offence. Legal stakeholders advise that the bill would catch much lower level offenders than in Western Australia.

3. absconding accused.

Interestingly, the bill does not cover the new elements in the 2014 policy. As I indicated, there are issues around the confiscation provisions and diversion of funds away from victims of crime. These remain a concern. Some of the things that should be looked at are providing the courts with the strength and capacity to exclude assets in the interests of justice, in particular to protect innocent third parties and dependents—and I will speak more about that in a moment—and limiting confiscation to repeat offenders and genuinely serious offenders.

During the committee stage we will probably flesh out what is estimated to be the number of offenders who are likely to be affected by this legislation if it passes the parliament, the amount of current confiscation receipts likely to be diverted from the Victims of Crime Fund and the estimated amount of other confiscation receipts.

In regard to drug trafficking and drug cultivation, I think that anything to do with drugs is a terrible crime on society and too many young people especially get tied up in it and a lot of it is because of the cost of getting a buzz, I guess. There have been discussions in this place and in committees about binge drinking and pre-loading. People pre-load with alcohol because it is cheaper to do that and go out at 1 or 2 in the morning than be out all night.

I would not know what the drugs on the street are worth but let's say for $20 or $30 they could buy a pill and that keeps them going for a few hours. Sadly, people get tied up in it for a range of reasons and I have heard some tragic cases where people have also got tied up in the dealing of these illicit drugs and they have no idea what they are in for apart from the fact that someone has met up with them out on the street and they think here is an easy dollar and when they get caught they do time, which is fair enough.

The Hon. J.R. Rau: You have to get caught with quite a bit before you are doing time, like kilos.

Mr PEDERICK: No, but what I am saying is that if you are doing drugs in any amount—but yes in regard to this, yes, as the Attorney suggests, they would have to be dealing in a reasonable amount. As I said before in my contribution, I have no sympathy with drug dealers and especially major drug dealers or major drug growers. Throughout my electorate—and the boundaries have changed significantly—and I have mentioned this before, a fair bit of Mallee country is suitable for growing marijuana and there have been some notable drug busts throughout the Mallee up towards the Riverland and obviously some other criminal activity where people have had a blue with a shotgun and there have been a couple of murders. Well, it would be more than a couple over an extended period of time.

Mrs Vlahos: I would say that is more than a blue.

Mr PEDERICK: Yes, well, more than a blue, exactly; a very serious argument. These are some of the things that happen because of people delving into something where they can make an easy dollar and the next thing is they wind up dead or severely injured. There are also cases where in a lot of that country people access groundwater, so you also get people who try to grow marijuana off the pipelines connected to the Tailem Bend-Keith pipeline.

They usually get found out. Because of the high price of water, people are monitoring their water use pretty heavily, and as soon as they see a meter going nuts it is either a leak or potentially, especially if you have a property with scrub on it, a drug crop growing out the back somewhere.

Ms Chapman interjecting:

Mr PEDERICK: Yes, exactly, and sometimes you need a bushfire to find out where they are. I can see the intent of the bill, but what concerns me a little about confiscation is the proof of ownership and what is mentioned in the bill about the person being in 'effective control'. I am assuming—and I am sure the Attorney will fill us in on the definition—that 'effective control' could mean someone who is looking after a property, leasing a property, renting a property, or they could be on a property and operating it without anyone even knowing they are there, which does happen in some of these cases. I am also concerned about what would happen if it were someone's child or even a grandchild, and this can happen sometimes, even in the leafy suburbs of Bragg. I am not trying to create a fight with my deputy leader.

Ms Chapman interjecting:

Mr PEDERICK: Yes, have a go. It was interesting that, not that long ago, during major storms in the eastern hills a tree went through the roof of a house in Glen Osmond. The neighbours were wondering why there were all these bright lights in the ceiling. There was quite a cultivation going on up there, I believe, but I am sure it happens all over the place.

In regard to ownership, I am concerned about the parents or grandparents who own the house. Obviously, people may live with their parents longer in life, and plenty of people still live with their parents until they are 30, 40, or even older, and there could be grandchildren—as if they are going to tell their parents or grandparents that they have a few lights switched on the ceiling that are keeping their crop growing. I am just hoping for a little bit of an explanation on how that will be dealt with, or will we find an unsatisfactory result where an innocent party has lost their house?

I just wonder how all other types of complex ownership could be dealt with. If this criminal legislation is passed, will criminal gangs work out complex ways of not owning property or of putting in some sort of trust arrangement and maybe not be a director but a beneficiary way down the bottom of the trustee deed? It could be a company ownership, with some very bogus listing of people involved. As I said, it could be a very minor owner. I am a bit concerned that the words 'effective control' could mean a whole range of things. I am not a lawyer, but I reckon the lawyers could have a field day working out what is 'effective control'. I would be very keen to hear the Attorney's answer in regard to that.

I can relate a story from about a decade ago, from memory, when we were leasing a farming property at Tintinara. I was in town trying to get some equipment fixed up in Tintinara, and I saw about 15 different police vehicles, police in flak vests and bullet-proof vests, and all sorts of things. I thought, 'What's going on here?' It does not happen every day in Tintinara, I can assure you. What had happened was that a bloke (who, sadly, passed away recently) had rented his farmhouse to these people and they had turned it into a methamphetamine lab—unbeknown to him, of course.

I just wonder how these people will be dealt with if this bill turns into an act and how they will be treated in the future. You might have no idea what is going on in your premises yet, obviously, these terrible human-destroying activities are taking place without your knowledge. Certainly, in the committee stage and in the summing up, I will be very keen to see how the Attorney-General addresses those concerns.

Mr TARZIA (Hartley) (16:55): This amendment to the Criminal Assets Confiscation Act has been put, as we have heard today, to the parliament in 2011, and I also note that there are inconsistencies between this bill and the policy the government took to the election in 2010 and 2014 respectively. On this side of the house, as was alluded to by our deputy leader (the member for Bragg), we do have some concerns about the operation of the bill, and I will go into these in turn.

I do not have to remind members of the house about the devastating impact of drugs in our community. I particularly would like to emphasise the devastating rise of amphetamines and other related drugs in the amphetamine class that we are hearing about more and more every day. It is amphetamine and cannabis that are being trafficked more so in South Australia than any other drugs.

The illegal organisations—and they are illegal—and individuals who continue to peddle these evil substances, and make them, are among the lowest in our community, let's face it, and I believe it is incumbent on the parliament—the government and the opposition—to consider every option in regard to dealing with these organisations. To put it frankly, these scumbags must be stamped out. The thrust of this bill, as the Attorney-General has said previously, is to remove their financial security as well as their freedom.

Firstly, I would like to talk a little bit about the background of the bill and, secondly, I would like to talk about the reaction of various stakeholders to the bill. In relation to the Kable principle, I note that the recent decision of the High Court in the Attorney-General v Emmerson, as was heard today, has confirmed that this sort of legislation does not violate the Kable principle. As the court found, it did not undermine the institutional integrity of the court's role as a source of commonwealth judicial power, and there does not appear to be a constitutional impediment to this bill as there was when this sort of legislation was introduced in 2011.

I will touch on a couple of points from legal interest groups. I refer the house to the Law Society's concerns about the bill in 2011, reiterated by their now president, Morry Bailes, last month in a letter to the Attorney-General. It is their view that this bill 'deprives a person of their normally acquired assets and property where there is no connection between the commission of the offence and the property'. Some valid concerns have been raised here. What happens to the person who has hydroponics in the roof of his mother's house, she does not know about it and there is a fire and this equipment is discovered? Who is to blame? How does this bill address those sorts of concerns? They are very valid concerns.

The Law Society calls the bill 'a retrograde and archaic step that fundamentally changes our community's laws in relation to personal property'. With all respect to the Law Society, I would not go that far in my assessment of this bill. I certainly find it difficult to accept that, on the face of it, serious organised crime gangs—these are hardcore gangsters and bad people who are drug traffickers dealing in commercial quantities of narcotics—who deal in these types of drugs would not derive most of their income from anything but the proceeds of their offending. I mean, let us face it, these guys are not in the business of working nine to five for an honest day's work and paying their taxes: they are mean drug traffickers.

I do have concerns about the wider implications of the bill that the Attorney, in my opinion, has failed to address adequately. One concern that I wish to speak about is the justice resources fund, and I draw your attention to proposed section 209A, subsections (4) and (7). I quote from proposed subsection (4):

Subject to any direction of a court under this Act, any proceeds of confiscated assets of a prescribed drug offender must be paid into the Fund.

Whilst you might think at first hand that that is fair enough, let us look at where this money will actually go. Where will these confiscated assets and funds be diverted to? There is an explanation there, and I will not repeat it on proposed subsections (5) and (6), but when you look at proposed subsection (7) it is quite incredible, and I will read it for the benefit of the house:

The Attorney-General may, with the approval of the Treasurer, invest any of the money belonging to the Fund that is not immediately required for the purposes of the Fund in such manner as is approved by the Treasurer.

That is a very wide scope. I would love, for the benefit of the house, to hear from the Attorney and find out exactly how wide that scope will be, and what other purpose this money will be diverted to, other than straight back into the justice resources fund where the actual proceeds of the offending go to things like the maintenance of the court. If you have been to the court precinct recently, you would know that the court precinct needs a whole range of upgrades. Just ask the judges, the magistrates and the people who go to court. Ask them if the court system and the court equipment needs upgrading.

It is absolutely outrageous that proposed subsection (7) could be so wide. I do not have a crystal ball, but I imagine that, if I did, tomorrow we will be getting our seventh budget deficit in eight years. Perhaps if drugs and the proceeds of organised crime are confiscated and sold, that is the only hope for this government to get us out of deficit. I mean, seven out of eight. It is a lot of money in confiscated drugs. Perhaps that is the white knight of this government—

The DEPUTY SPEAKER: Yes, member for Ashford.

The Hon. S.W. KEY: Point of order: I am actually offended by what the member has just said about connecting us with organised crime, and I—

Mr Gardner: That is bogus. Sit down, Steph.

The Hon. S.W. KEY: Well, I am offended, so I would just like to raise that and I think the member should stick to the topic and not talk about the budget.

The DEPUTY SPEAKER: We have just been discussing—he has strayed somewhat from—

Mr TARZIA: I will explain, Deputy Speaker. We are talking about an act which is proposed by the government, and the member for Ashford should probably read the section. It alludes to the Attorney-General, with the approval of the Treasurer, investing any of the money belonging to the fund, which is from the proceeds of crime (confiscated assets) that can be used 'in such manner as is approved by the Treasurer'. It does not get much simpler than that: money from organised crime being confiscated into a general revenue for the government to spend at its discretion. What more can I say than that? It is absolutely outrageous.

Put simply, this is a provision that will allow the government to divert money away from an already under-resourced legal service, and the legal services are the ones that need these upgrades and facilities. Let us not keep the money in that legal service. No, let us divert it at the discretion of the Treasurer and the Attorney. This should be of far greater concern to members of this place than the civil liberties debate promulgated by individuals and the Law Society. It is about more than just money. I refer to an article in The Advertiser from 24 January 2014. I quote:

Top barrister David Edwardson, QC, dubbed South Australia's justice system the worst in the country, and it isn't hard to see why he gave it an 'F'.

He goes on:

We have seen $3.2 million spent on revamping the Sturt St court precinct, only for it to fall into disuse over security concerns and be demoted to handling tribunal matters.

The justice system is under such constraints and such toil at the moment, and this government wants to divert money. I thought that it was a good idea, on the face of it, to put money into such a fund, but to have the discretion to divert it away from the very resource that needs the support I think is ridiculous. I vehemently oppose the diversion of funds from the justice resource fund to be consolidated for other purposes. I will not accept it. Money should not be taken from victims of crime, money should not be taken from courts and essential justice infrastructure that needs upgrading.

The Attorney would certainly be well aware, I am sure, of the current problems facing our court system as it is. I particularly want to highlight the appalling state of the court's IT systems, something I note Chief Justice Kourakis has brought to the government's attention on many occasions. It is an absolute shambles. We are behind most of the other states in this country on this issue.

Much of the technology is at least a decade old, and if you go in there, you will see it. It is simply unable to cope with the justice system's increasing reliance on electronic communication and electronic lodgement of forms. Unless this technology is upgraded, the justice system cannot continue to offer the level of service it does now.

This is an opportunity for the government to take some leadership on this role. The bill should be passed only on the basis that the proceeds of crime from serious offenders goes to areas such as victim support and other essential services, not to assist in propping up the government's dwindling revenue base. Some people have told me that they may be doing this with other organisations, perhaps SA Water for one.

I find it appalling that the government would insert a deliberate loophole in subsection (7), because that is what it is, to enable the Attorney-General to channel these funds through the backdoor to help with this government's unsustainable spending spree. It is another example of the government's disregard for the operation of the justice system. If you are serious about the justice system, make sure that this money goes back to the justice system it is supposed to serve. With respect, I encourage the Attorney-General and the government to examine a couple of those areas I have highlighted.

I am concerned about the unintended implications for third parties affected by forfeiture orders proposed under the bill. As we have heard, it is likely that the operation of the bill will also see blameless third parties not having a home or other assets because of the affects of the bill. In my opinion, the Attorney has not made it clear to the house what provisions there will be to accommodate these families.

You cannot just throw these people out on the street. I understand that there are criminals involved here, but what about the innocent people, the people on the side? Are we going to just throw them out on the street? Surely not in this day and age. I think that the Attorney should explain this properly to the house. In conclusion, I will be supporting the bill, but I would like more detail and assurances in relation to the mentioned areas.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations) (17:08): I thank those who contributed to the debate. I know that we will probably go into committee on this thing. I am a little bit unsure about exactly where we are going, because the deputy leader indicated that there would be support for this bill, which, after all, has been in the possession of everybody since 7 May, but then she appears to be saying that there may be bits and pieces that will not be supported, presumably in another place.

Ms Chapman interjecting:

The Hon. J.R. RAU: Okay. Can I say that now that the deputy leader is now the shadow attorney, one of the things I am looking forward to, which I was not able to enjoy the privilege of in the previous parliament, is seeing amendments to our bills right here in the House of Assembly. Because we have had this bill sitting out there most recently since 7 May, so that everyone could have a look at it, I would have thought that, as a matter of courtesy, if not a matter of competence, and given the fact that they have seen it three times before anyway, if there were going to be amendments, we would have seen them so that we could have thought about them and had a bit of a conversation about them.

Members interjecting:

The DEPUTY SPEAKER: Order!

The Hon. J.R. RAU: I am just going to say that I hope what they are actually going to do is support it, and, if that is the case, really good; if not, it is at best a poor show that any amendments that are being thought of are not in here where they should be, but instead in another place where the opposition spokesperson is now not. Can I make another comment, too—

Members interjecting:

The DEPUTY SPEAKER: Order!

The Hon. J.R. RAU: No, you have had plenty of time; you have had about four years to get ready for this, being shadow attorney and being on this bill for the fourth time—

Ms Chapman interjecting:

The DEPUTY SPEAKER: Order! Sit down. Please, let's just stay on track. We are going to move into committee shortly; we are all wasting time by these interjections. It would be really good just to hear the Attorney on his own as we wind up.

The Hon. J.R. RAU: Thank you very much, Madam Deputy Speaker. If, after four years of knowing exactly what this is all about, and after over a month of having it sit there, there are to be amendments and they are not already filed, that would be appalling. But, I am not going to tee off on that at the moment because we do not have that; I am going to take a completely different tack and I am going to congratulate the opposition for supporting the bill because they have not filed amendments, so thank you.

I also wanted to say a couple of words about the honourable member for Hartley's contribution. One of the most interesting techniques in debate is to assemble a straw man, a Worzel Gummidge-type individual, and then kick him to death. That is, of course, what the member for Hartley has done. There is this faux bill, dressed up like Worzel Gummidge, and he is in there, kicking him and belting him; he has the hobnail boots into him.

It was an impressive performance, except for just one thing: nothing he said was even vaguely based on the bill before us. Aside from that, it was compelling. Can I invite all members to just have a look at page 10 of the bill. Page 10 talks about the infrastructure fund, and it says:

The Fund may be applied by the Attorney-General (without further appropriation than this subsection) in the absolute discretion of the Attorney-General for the following purposes:

It then identifies the purposes—subsection (5).

Mr Tarzia: You've still got discretion.

The Hon. J.R. RAU: Yes, but hang on. I know that it says in the member for Hartley's CV that he is a lawyer, so I am just taking him through this in—

Members interjecting:

The Hon. J.R. RAU: But if you look at subsection (5) it says, 'The Attorney may, in his discretion'—and then limits the discretion—'do one of the following three things'. The Attorney can only, in his discretion, do one of those things. He cannot, if he feels like going to the races, take his money down there, no.

Ms Chapman: Subsection (7).

The Hon. J.R. RAU: Okay, I am getting to that, but have we absorbed subsection (5) yet? Have we absorbed that 'may be applied for the following purposes'? They are then quite specific. I gather from what the member for Hartley and others have said, they do not actually have an issue with those purposes, because they say the courts were in need of support and so on.

Let us go to subsection (7). The member for Hartley is going to love this, because it does solve his problem, and he will be able to relax and enjoy the rest of the bill. Here it is: it is a real clincher. It is a clincher, everybody. There is one very special word in subsection (7); it is the first word in line 2, and it is 'invest'.

Ms Chapman: What's that, when you go to the races?

Members interjecting:

The DEPUTY SPEAKER: Order! That is a wager, not an investment.

Ms Chapman: A very poor investment.

The DEPUTY SPEAKER: Order!

Mr Gardner: I'm going to invest in broccoli futures!

The DEPUTY SPEAKER: Order! I have the Speaker's chart here. While you may have spent time out today, you can go back to warnings and all the rest of it; Hammond is on his first, Mount Gambier is on his first, and Hartley has had a warning. So, let us finish the debate and get into committee and finish the legislation. Attorney.

The Hon. J.R. RAU: Thank you very much, Madam Deputy Speaker, and can I say—

The DEPUTY SPEAKER: Hold on, there is a point of order.

Mr GARDNER: Point of order: I seek your clarification on the decision you have just made. As I am not aware of having received any warnings at all today, despite what may have happened—

The DEPUTY SPEAKER: That's right, but he is clearly—

Mr GARDNER: —can you identify if I do now?

The DEPUTY SPEAKER: He's clearly ruled you out of the room and what I am saying is that the clock can start again. Let's just finish the debate and get on to the committee stage and actually finish some legislation.

The Hon. J.R. RAU: As Commissioner Fairweather in the Industrial Commission once would have said, 'Consider yourself warned.' He said that to me many times. Anyway, back to No.7.

Members interjecting:

The DEPUTY SPEAKER: Order!

The Hon. S.W. Key: You're more understandable than he was.

The DEPUTY SPEAKER: Mind on the job.

The Hon. J.R. RAU: Anyway, No.7: let's go through this bit by bit because if you break it up it makes sense. 'The Attorney-General may'—not must, may—'with the approval of the Treasurer'—why the approval of the Treasurer? Because the Treasurer is the chappie or lady who is in charge of the state's money and therefore is the policeman (or police person) of sound investment. It goes on: —'invest any of the money belonging to the fund that is not immediately required for the purposes of the fund in such manner as is approved by the Treasurer.'

What that means, member for Hartley, is this: if the fund has, say, $8 million in it and it is sitting in the NAB bank account and receiving 2.5 per cent interest per annum, and the Attorney discovers that if it is invested in a government bond or if it is invested in a balanced equities something or other, there can be a return of 4.5 per cent, then the Attorney can say to the Treasurer, 'Treasurer, my pot of money here, which is there for these beautiful purposes in subsection 5, could grow even more quickly and help even more people if I could move it into a higher return area.'

The Treasurer would say, 'Hmm, I'll have to speak to my people and I'll get my people to speak to your people because we don't allow you to do really risky things. We don't let you go to the Casino; we don't let you go to the racetrack; we don't let you buy broccoli futures, but we will consider a mixed portfolio managed fund, for example.' That is what that is about. If the member for Hartley wants to cling onto the straw man and keep insisting that that does not mean what it does mean, that is okay. We are okay with that, but I just wanted to give you the chance to let go of it, because it is not helping you. It is not good.

We will come back to victims of crime and this. The good news is that this is taking nothing from the Victims of Crime Fund because we are not collecting any of this money now at all. None of this money is coming out of victims of crime, because it is not going anywhere at the moment except into the pockets of criminals. We are taking nothing out of victims of crime and, by the way, at last count, I think there were some hundreds of millions of dollars sitting there, waiting for the victims of crime to receive the benefit of it.

Because it has got to that stage, we are doing innovative things like increasing the victims of crime payouts from $50,000 to a $100,000 maximum, so we are starting to move some of that money out. This money is being retained for a completely different purpose. It is not being taken from victims. It is being collected from criminals and the money is actually improving the courts to help victims. The victims will get a collateral benefit out of this money being collected here and being spent on the very noble purposes in subsection 5. I hope that has cleared those two things up.

The other point I would like to make is that we have actually put this bill up four times and we have run two elections on it. I should have said hello to the former member for Schubert before he left. The place is not the same without the former member who made some excellent contributions, from the very spot where the member for Mount Gambier now sits—and it's lovely to see him here.

Mr Gardner: What about when he was here?

The Hon. J.R. RAU: It was still lovely. He was lovely then too. He has always been lovely. What we have had is four introductions into the parliament, three rejections by the combined opposition and crossbenchers in the other place, two elections where we promised it. Two elections! How about this? If we were in the commonwealth parliament, all you need—

Mr Gardner interjecting:

The DEPUTY SPEAKER: I will have to call the member for Morialta to order shortly.

The Hon. J.R. RAU: If we were in the commonwealth—

Mr Gardner: But not yet.

The DEPUTY SPEAKER: It will be next time, so let's not do it. Let's have some goodwill. We're nearly there.

The Hon. J.R. RAU: Yes, we are. We are getting very close. If we were in the commonwealth parliament, the rules under the federal constitution, under the deadlock provisions that sit in there, say that if a bill originating from the government in the lower house fails to pass the Senate twice within two years or after a year—I think it has to be a gap of a year—

Ms Chapman interjecting:

The DEPUTY SPEAKER: It might be worthwhile to remind the deputy leader that she is on her second warning as well, and didn't we hear today that if her lips moved once more there would be trouble?

The Hon. J.R. RAU: If it fails to pass twice, you have a trigger for a double dissolution when you can put a more—

Members interjecting:

The Hon. J.R. RAU: My point is that we have done 2½ times what the commonwealth does for a double dissolution: we have run two elections with this policy and won, and we have put the bill up four times, and we are about to run it through for the fourth. How is that for commitment? If we were in Canberra, we would have had two double dissolutions out of this, so that is how seriously we are taking this bill and that is how obstructionist in the past the opposition has been, though not now because the member for Bragg is indicating a new day has dawned, and I am very happy about that. We have certainly put it out there, no question about that.

There was a remark made about the five-year business being abandoned. It is not abandoned: we are working on it. I can say to the member for Bragg that it would be very helpful to me if she wished to indicate on the record whether they will be supporting us on that one too because, if she says they are supporting us, I will be able to tell parliamentary counsel, 'Your work will not be wasted. The member for Bragg has committed to supporting this. Get on with it.'

Ms Chapman interjecting:

The Hon. J.R. RAU: No, I am saying to the member for Bragg that if parliamentary counsel knew that the member for Bragg and her colleagues would definitely not support that part of the bill, they would feel quite saddened in the task of drafting because they would feel that the draft would be ultimately not appreciated, whereas if they were to get the good news from the member for Bragg that that part of the bill would also be acceptable I think they would have a spring in their step.

Comments have been made about the Law Society, and I think even the member for Hartley said the Law Society sometimes does not get it right. Let's be real about this. They have a criminal law committee in there that is populated by criminal defence lawyers who have a certain view of the universe; that is not an incorrect view, but it is their view. Some might say that, compared with the view of most people in the public, it is an idiosyncratic view, but that does not mean it is not valid: it just means that we do not have to automatically agree with it, that is all. That is really the general wrap-up, and I gather that there is a wish to go into committee.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: The Attorney has indicated that, whilst this bill covers the 2010 commitments, the 2014 five-year ban on holding property provision, which is not in this bill, is on its way, as I understand it. Can the Attorney indicate for the consultation on this—and I appreciate that the bill as it currently stands emanates from the 2010 promises at the election—whether the 2014 part of the policy, which is to come now in a separate bill, has been put out to consultation and whether any other stakeholders have indicated their view on it.

The Hon. J.R. RAU: In relation to that part, it has yet to be drafted, so there has been no consultation other than the publication prior to the election of our policy, and we are in the process of working that up. The reason it is not included in this is that it was my judgement that all this was already well known to the parliament. I wanted to get it back in as soon as possible, and there would be no cause for delaying this on account of there being new matters in there that people had not heard of.

Ms CHAPMAN: In respect of the five-year ban, how many offenders are likely to be affected in addition to those that this will apply to?

The Hon. J.R. RAU: It would be exactly the same—

Ms CHAPMAN: Number as these.

The Hon. J.R. RAU: Yes, the same people. In fact, potentially, the maximum it would be is the same number as these because I think we say in the policy that there would be a discretion vested in the court of up to five years.

Just to explain, the rationale for this is pretty simple. If somebody is in the criminal business of cooking amphetamines, as the member for Hammond was talking about, or importing large amounts of something, they are not doing that just for the thrill of it: they are doing it for money. It is all about money, so the rationale for this is to say, 'Right, we are going to take your money off you, and not just the bits we find in the bag with the dope. We are going to take all your money off you, effectively, except we will bankrupt you.' Similarly, it would have to be quite a disincentive to say to such a person, 'Not only are we going to take your money off you now, but you are going to have difficulty being a company director or owning a business for a period of up to five years.' That is the gist of it.

I am advised that you asked for some statistics. I might be able to read something into Hansard. I am advised there are many pages of it, but there is a document I have been provided with. We are probably not going to entirely finish today anyway, but it can be between the houses. I am just indicating that there is a document from the Office of Crime Statistics and Research, dated June 2014. It is hot off the press (it arrived at 8 o'clock last night, I am told), and it deals with commercial drug offences from 1 July 2008 to 30 June 2013. I will provide it, but I will give you some examples from this document. Under 'drug offences':

traffic in large commercial quantity of a controlled drug, for instance: in the year 2008-09, 14; next year, 23; next year, 13; next two years, 36;

traffic in commercial quantity of controlled drug: none until 2012-13, then two;

manufacture of commercial quantity of controlled drug: 2008-09, one; following year, two; following year, two; following year, none; last year, five;

sell a large commercial quantity of a controlled precursor: we have not had any;

cultivate a large commercial quantity of a controlled drug: starting again with 2008, zero; next year, one; next year, five; next year, five; next year, four; and

cultivate a commercial quantity of a controlled drug: all years except last year, none; two last year.

If you look at the trend, you see that there has been an increase in the total number of these offences from a total of only 15, in 2008-09, to 49, in the year 2012-13, and similar figures exist for some of the other offences which are described in the trigger provisions of this legislation. What we are seeing is a clear increase, from these statistics, in the frequency of these things, but they are occurring in the order of 20-something a year, or 40 a year, not hundreds a year.

The CHAIR: Deputy leader, before we go on: clause 1 is just the short title, is it not?

Ms CHAPMAN: That is right, yes; but we are talking about the general impact of the bill at this point and that is why I am doing it on clause 1.

The CHAIR: And are you going to have more than three questions, do you think?

Ms CHAPMAN: Possibly but I am happy to go to a particular provision, if you would like to do it that way.

The CHAIR: Yes.

Ms CHAPMAN: However, as the minister has opened up the general statistics that is what I want to cover. I would appreciate it if a copy of that could be forwarded to the opposition. I appreciate it was only recently created.

The CHAIR: The Attorney has tabled that document. Is that correct?

The Hon. J.R. RAU: I have not, but I am very happy to do so.

The CHAIR: Very close to doing it, thank you.

Ms CHAPMAN: My next question relates directly to that: how many of the offenders are likely to be affected? Essentially, it would be up to a maximum of all of those, up to a maximum of five years under the new policy.

The Hon. J.R. RAU: Yes.

Ms CHAPMAN: Of those, to identify how much—and I read out a list of the monetary receipts from 2006 on under the current 2005 act—I am not sure whether you were immediately available to hear those at the time but you might recall I had a list of them all. We are up to over the $2 million mark in the last financial year. What I would like is a breakdown of the amount of money, if any, as a result of this legislation coming in that would be diverted to the new fund. In essence, I am assuming that under the current rules the $2.2 million that is currently in the fund will still go into the Victims of Crime Fund and that the new money will come in based on the estimate of the numbers that are coming in there.

However, of the receipts that we have had in the last five years, how many of them would be diverted because we would know of those offenders in the last five years? You know what the circumstances are in each of those cases, as to how much other money was accumulated into this fund under these new rules, so I would like some assessment. I realise it is not an exact science, but we know the circumstances of those who have already been subject to a confiscation, as to whether or not they own other assets, and as to what would have been recovered.

The Hon. J.R. RAU: Can I say in relation to that question that I suspect the answer to it is impossible to give with any accuracy because of a number of things, not least of which is the fact that we are not sure how many of these numbers we are seeing here are repeat offenders. We do not know.

Ms Chapman: But you will know; you have the data.

The Hon. J.R. RAU: But the data does not identify whether the people who are being captured in that data are repeat offenders; it only indicates offences.

Ms Chapman: I realise that, but you can get it.

The Hon. J.R. RAU: No. We do not know; we cannot. Another point, quite rightly, is that, given the fact that, if they are repeat offenders, some of these people would be spending some of the time in prison, how do you take that time off unless you know exactly the particular history of the particular individual? It becomes very complicated.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

Ms CHAPMAN: This is where we have the definitions, in particular the categories that are going to attract the confiscation under this new bill. We have the serious offence, which is the combined effect of clauses 5, 6 and 8, so I will just refer to that in the questions I have now concerning the restraining orders covering it. It does broaden the definition of 'serious offence' to capture, obviously, other low-level offending conduct.

As I understand it, the current law is that only three offences can be dealt with summarily, which is under section 32(3), 33B(3) and 33C(3) within the definition of serious offence. The effect of broadening the definition is that restraining orders and ultimately forfeiture can be obtained over property of a much greater number of defendants. Can the Attorney confirm if that is his understanding of the situation and, if so, the justification for it?

The Hon. J.R. RAU: We are a little confused here. Are you on clause 6 or clause 5? What page of the bill?

Ms CHAPMAN: It can be clause 5. I will just see if it is clause 6. I thought it was in the definitions clause, but equally it could apply to the meaning of the prescribed drug offender, because that is what produces the expanded prescription. Clause 8 pertains to restraining orders. So it is the new 6A—Meaning of prescribed drug offender.

The Hon. J.R. RAU: So can I have the question again now?

Ms CHAPMAN: Basically we have the broadening of the definition of serious offence so that it makes provision for either the serious one or the three offences that are dealt with summarily in 32(3), 33B(3) and 36C(3), which are within the definition of serious offence. So that low level of offending conduct in the Controlled Substances Act gets captured, so we have a broader number of applications now than what the principal act—the Criminal Assets Confiscation Act 2005—applies.

My understanding from the second reading explanation is that this is to catch the serious ones plus those that repeat, even if they are at the low level; I understand that. The problem that potentially comes with this is—and I think this was raised by the Hon. Ann Bressington in the debates the last three times this bill went to the Legislative Council—this question of making sure that, if they are an aggregate, they are going not to capture three offences but a series of three instances of misconduct, if I can describe it as that: three separate events. She raised concerns about three separate courses of conduct in that 10 years.

The Hon. J.R. RAU: It is certainly the idea that we were attempting to capture the notion of three separate behaviours, and I am advised that 6A(1)(b) is where we are trying to actually capture that notion. It says 'separate occasions'.

Ms CHAPMAN: They, with respect, cannot be a series of conduct. They could be the same house, the same friends. Over three or four days there might be two or three arrests or charges laid. Do you see what I mean? It is a bit like at the moment where we have a situation where someone is caught on a speed camera in an unregistered car. They go back and forth to work for two weeks and then at the end of the two weeks they find that they have been charged with 15 counts of driving unregistered, but it really has been one course of conduct.

The Hon. J.R. RAU: I think the answer is that even the so-called minor offences are not trivial offences. For example, the minor offences are not things like carrying a few grams of cannabis.

Ms Chapman: They are.

The Hon. J.R. RAU: The minor offences do not include simple possession.

Ms Chapman: No, that's true.

The Hon. J.R. RAU: So what would have to have happened is that a person would have been committing a drug offence, not necessarily of importing a couple of tonnes of amphetamine, but certainly it has to be an indictable drug offence, so they would have been pinched for that. Presumably, when they were pinching them the police would not have left them with the drugs, and then this person is obviously then working on the theory that lightning never strikes twice in the same place and goes out and repeats the conduct immediately, only to get pinched again and then decides it could not happen three times in a row, so he goes out and grabs some more gear and gets pinched again. I guess that is possible, but I think that is quite unlikely.

Ms CHAPMAN: Yes, I think the problem is the possibility. I am just looking at your second reading contribution—high-level or major traffickers. It sets out, I suppose, a summary of what that would cover on the presumption that it is the amount that is found in the possession of someone, which is the most likely trigger towards a successful prosecution.

You explain in your second reading speech that for the three different categories in South Australia—trafficking amount, commercial amount and large commercial amount—you only need two grams, 0.5 kilograms and one kilogram respectively. For cannabis, 250 grams, 2.5 kilograms and 12.5 kilograms respectively; for cannabis resin, 25 grams, two kilograms and 10 kilograms; for heroin, two grams, 0.2 kilograms and one kilogram respectively; and for cannabis plants, 10 plants, 100 plants and 500 plants respectively.

I do not know how many tablets you would find in two grams of amphetamine but I do not imagine it would be too many, so perhaps if you could explain. That is for the high categories, let alone when you go to your identification, saying, 'Well I am not going to just accept people who are charged with indictable offences to be under the repeat offences category,' that you explain have to be low level.

The Hon. J.R. RAU: Okay, here is the way it goes. The serious offences are the two that would appear in that summary as the commercial amount and the large commercial amount. I think we are all pretty clear on that. I am advised that if you have in excess of two grams, for example, of amphetamine, you are presumed to be holding an amount for the purposes of trafficking but that presumption is a rebuttable presumption. If you rebut the presumption then you do not wind up with a trafficking offence, you wind up with a possession offence even though you have more than two grams. So, the reason that is there is just to indicate where the presumption starts to cut in for trafficking. It does not indicate necessarily that a person with that amount will be convicted of trafficking.

Ms CHAPMAN: Under the new rules to apply for repeat offenders which is a lower threshold, someone who is in possession for sale or for trafficking would be caught.

The Hon. J.R. RAU: Yes.

Ms CHAPMAN: So that person could have a few tablets at a nightclub, three times?

The Hon. J.R. RAU: Three times in 10 years.

Ms CHAPMAN: That is my point. It will now capture not just the high level, but you are adding in this category saying that even if you are a kid at a nightclub and you have been caught three times with tablets in your purse, you could be in this category.

The Hon. J.R. RAU: Yes.

Ms CHAPMAN: My point being that that is a much more expanded group and, obviously, that is one of the concerns that we have raised. In any event, you say that for the purposes of defining the three separate occasions they have to be different courses of conduct; that is, you could not be caught, picked up at the nightclub, not arrested, taken away, and then found later that night with two more picked up from someone else. That is really one course of conduct.

The Hon. J.R. RAU: I think that is the case. You would expect the court to take an intelligent view about whether something is part and parcel of the same thing or a separate matter altogether.

An honourable member interjecting:

The Hon. J.R. RAU: Yes; particularly given the consequences.

Ms CHAPMAN: There is no appeal to once being defined as a prescribed drug offender and then having property first restrained and then forfeited. Is there some reason why the government has taken the view that someone in these circumstances should not have any right of appeal?

The Hon. J.R. RAU: First of all, given that the tripwire is there, you either trip over the wire or you do not, and there is no point having an appeal about that. Obviously there is an appeal in respect of each and every offence which might constitute the elements of the tripwire. Even after going through all of that, I think there are provisions here, if I am not mistaken, that say that a person who decides to become cooperative with the police may nevertheless have the burden lifted.

Ms Chapman interjecting:

The Hon. J.R. RAU: I believe there is more. Section 226 of the main act, I am advised, provides that:

(1) A person—

(a) against whom a confiscation order is made; or

(b) who has an interest in property against which a forfeiture order is made; or

(c) who has an interest in property that is declared in an order…to be available to satisfy a pecuniary penalty order or literary proceeds order,

May appeal against the confiscation order—

Ms Chapman: What was that?

The Hon. J.R. RAU: Section 226 of the original act.

Clause passed.

Clauses 6 to 9 passed.

Clause 10.

Mr PEDERICK: Attorney, in regard to clause 10 and forfeiture orders—and I reflected on this in my contribution—and the changes in section 47(1)(a), it says that a person has been convicted of one or more serious offences and the court is satisfied that the person is a prescribed drug offender and the property to be specified in the order was owned by or subject to the effective control of the person on the conviction day for the conviction offence and was not on that day protected property of the person.

I guess my concern is, first, the definition of 'effective control', because it is different from ownership in my mind—and I am not a lawyer—and how you deem the property was owned. In my contribution, I went through about how it could be under a company arrangement, a trust arrangement or very many arrangements, and someone might have a very minor ownership of a property, like 1 per cent or even less, which happens these days with investments, and also whether property of someone, an innocent bystander—it could be a family member—where this convicted drug trafficker is living and using a house they do not own, but it is a family member's house, could be caught up under this clause?

The Hon. J.R. RAU: I thank the honourable member for his question, and he raises a very good point. As to the meaning of 'effective control', the member for Hammond is quite right: it is much broader than a straight-out legal ownership, and it is defined in section 6 of the principal act. It goes into things like whether or not a person has an interest, trusts, where you have effective control, and all sorts of things. It is page 6. It goes on for some time and even has quite an interesting equation, which has the number 1 over a line and below that line is written 'the number of beneficiaries'. It would include shareholdings, debentures and all sorts of things. It is a very broad concept, so, yes, you are right about that.

Secondly, again under the primary act, a person who is in effect, as you have described them, an innocent third party, can seek an exclusion order, which would have the effect of excluding their property from restraining orders (and that appears in division 3 of the primary act, from section 34 onwards). There is already an opportunity in the existing legislation for people who find themselves in that circumstance to have their day in court, as it were, and that will continue to be the case.

Mr PEDERICK: I thank the Attorney for that explanation. Does he know whether under the existing act there have been any flaws or incorrect applications of those parts he just so described?

The Hon. J.R. RAU: I am advised that there was a hiccup in relation to exclusion orders. There was a matter in the District Court, which apparently did not go well, and it was something to do with the timing of when the orders might have been made. That problem was identified and in fact rectified in the miscellaneous legislation to which the member for Bragg referred earlier and which passed the parliament last year. There was a problem, it has been identified, and the parliament has fixed that problem.

Mr PEDERICK: In regard to this, a third party, an innocent party in this case, would not, in the application of this bill if it becomes an act, have to incur heavy legal fees, in your mind, to make sure they exclude their property from resumption by the Crown?

The Hon. J.R. RAU: That is a little bit like, 'How long's a piece of string?' I would have to say. It would depend on the circumstances and on how tenuous their hold on the property might be. If they could turn up and demonstrate that they had owned this vehicle for 20 years, and so on, that might be a simple case, but there may be things that are a lot more complicated than that if there are trusts and whatever. The short answer is that it would depend on the nature of each matter.

Clause passed.

Clauses 11 to 18 passed.

Clause 19.

Ms CHAPMAN: My note is 'defined in section 6'. I think you said page 6 of the principal act.

The Hon. J.R. RAU: Page 7, section 6

Ms CHAPMAN: Paragraph (a) states:

(a) property may be subject to the effective control of the person whether or not the person has an interest in the property.

Effective control, in theory, can be like that of the boy of the family in Western Australia. The son lives in the house, does not own the property, stores his cannabis in the house and the house is taken from the 80 and 70 year old couple. They do not even have to have an interest in a trust that owns the house. That obviously is fairly broad.

The Hon. J.R. RAU: To clarify that point, it is probably worth remembering that in the particular case the member for Bragg is speaking about, the actual house was an instrument of crime

Ms Chapman interjecting:

The Hon. J.R. RAU: Exactly, so it was actually subject to forfeiture under what we already have, not under this. The outcome is, indeed, as the member has indicated but this piece of legislation is not what was required to put those people in that category. What we already have in our statutes would have been enough to do that.

Clause passed.

Clauses 20 and 21 passed.

Clause 22.

Ms CHAPMAN: This is the Justice Resources Fund which the proceeds of this new tranche of forfeiture is going to be applied to, and there was a contribution by you in your rebuttal to indicate that the fund will not able to be plundered by you in concert with the Treasurer. I have not seen this type of legislation before where the operator of the fund, one minister, gets permission from the Treasurer for different types of investment, and I just ask the question about why that is necessary.

Under the investment rules of these funds, like the Victims of Crime Fund, you have some discretion as to how the funds are invested, by Treasurer's direction. That is what usually happens—treasurers put out a direction about what happens with these. It is not a question of you saying, 'I've got this bright idea about where we might invest it,' and ringing the Treasurer and your people speak to his people, etc., as you say. It is a situation where these funds are under Treasurer's directions and the rules that apply to the investment, in any event.

It is a little bit different if you have a medical research fund, for example. We used to have one of those, I think, until the Minister for Health pinched it all. That was done where there were certain investments that could occur, and at one stage that fund owned the building in Hindmarsh Square which the Department for Health occupies. This is the one that the former treasurer decided he wanted to sell once and we had to point out to him that he did not actually own it. Can you identify where else this is and why it is necessary in this fund?

Sitting extended beyond 18:00 on motion of Hon. J.R. Rau.

The Hon. J.R. RAU: Can I just respond to the honourable member's question in this way. I think subsection 5 deals with the concern about whether or not the moneys might be applied willy-nilly to all sorts of silly things. As to the matter in subsection 7, I always took it on the basis that, because it was a hypothecated fund, there would need to be some obvious management by Treasury. I would seek to find out between the houses whether there is some other way of doing it, but my interpretation of this always was that it was meant to ensure that that fund was never able to be invested in something which was regarded by Treasury as an unsatisfactory allocation of public funds. That is my understanding of it.

Clause passed.

Remaining clause (23) and title passed.

Bill reported without amendment.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations) (18:01): I move:

That this bill be now read a third time.

Bill read a third time and passed.


At 18:01 the house adjourned until Thursday 19 June 2014 at 10:30.


PARLIAMENTARY BUSINESS
MEMBERS
GET INVOLVED
ABOUT PARLIAMENT
VISIT
LEGISLATIVE COUNCIL
HOUSE OF ASSEMBLY
CONTACT