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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Bills

Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill

Final Stages

Debate resumed.

The CHAIR: Before we go on I have been asked to restate the question before the chair, that is, that the disagreement to amendments Nos 1 to 4 of the Legislative Council be insisted on.

Ms CHAPMAN: I am referring to 1 to 3 because No. 4 actually goes into appeals.

The CHAIR: Yes, but the table is very correctly pointing out to me that I have to point out to you that it is one question, and I am allowing you to do what you are doing. So, you are talking 1 to 3 and then 4 separately?

Ms CHAPMAN: Yes. So, on 1 to 3, because these all relate to the appropriation of funds—

The CHAIR: And you are happy with them.

Ms CHAPMAN: We have had criminal compensation legislation for a long time, even when the former member for Bragg was in the parliament and dealt with criminal injury compensation payments, as it was then known. It has gone from $2,000 up to, I think, $10,000, and more recently we have increased it to $50,000. You will be pleased to know the Lagaseti case is just about ready to be signing the lease to his property—15 years later. It took a while.

In any event, that is our position. We think the upper house has presented a sensible resolution to this and the parliament has a choice, and I regret to note that the Attorney rejects that choice of an all or nothing. He wants all the money. He wants the cabinet to have control of this money. If he has some sensible ideas about the expansion of application of funds in the Victims of Crime Fund then let him bring that back, open that bill and we will have that discussion. In the meantime, we are with the Hon. Mr Darley to at least quarantine, effectively, 50 per cent of those funds for drug rehabilitation (No. 2 bullet point in the '2036' document which has been referred to by the Attorney).

I now come to No. 4. This, essentially, makes provision for a number of things, but the first is that there be an appeal process. The second is that there be an annual report, and thirdly, that there be a review of the act within three years. On the first point, can I make the point that the appeal process is not foreign to other jurisdictions. The Attorney has outlined how he sees this as a sabotage effect on the application of the DPP's integrity and the application of his decision-making, and that we do not need it.

The Attorney has referred to Mr John Elferink, who is the Attorney-General in the Northern Territory—soon to retire, sadly, but nevertheless who clearly has extraordinary experience in this field. The Northern Territory is a jurisdiction that did not have the same basis of legislation that we already had in two sets of legislation, under our criminal assets confiscation legislation and our serious and organised crime legislation. They did not have that structure, but when they went to a formula similar to what we had (where, effectively, their DPP makes that administrative decision), their legislation had an appeal process in it. Their legislation has netted them—after they went through the High Court and sorted it all out to make that clear—in the last financial year about $5 million. So, for the last four times that the Attorney-General has been fighting off this sensible addition to legislation, he has missed out on probably millions of dollars a year.

There is a model in the Northern Territory which operates with an appeal process, which I am disappointed the Attorney has not picked up. It has not sabotaged their capacity to ensure that they have a process that is effective in harvesting the money and assets of people who have been convicted of serious drug offences. He should read that legislation. He should have a talk to Mr Elferink again before he retires, and he should get with the program and understand that all we are doing is introducing a process to ensure that an administrative act (which is what a decision of the DPP is) is reviewable.

We have even been so careful as to ensure, with the endorsement of the upper house, that it comes with a qualification. There has to be a threshold of circumstances which are identified in the appeal as being in the interests of justice to do so. Some would say that is fairly open-ended and broad, but it still provides a threshold over which it has to be established before that review process can be initiated. So, I endorse this.

The opposition are very keen to maintain this. We expect that if the government were serious about pursuing these convicted criminals of serious offences and depriving them of all their assets, they ought to understand it has not impeded other jurisdictions from recovering. They are doing it at a rate of about $5 million a year just up in the Northern Territory, which has a population of a drop in the ocean compared with ours.

As to the annual report, the Attorney says on this issue and on a review, 'If I got my way on the other things, I would consider doing these.' How arrogant is that? Why does the Attorney not say that it is not unreasonable that we review these? In fact, we review our current confiscation legislation on a regular basis. Let me advise the parliament what the current review, tabled in this house in October last year, says about our current legislation.

The report was tabled by the Attorney on 27 October 2015. The review was conducted by a retired judge of the District Court, the Hon. David Smith, and he followed reports in 2011 and 2013 prepared by Mr Alan Moss, retired chief magistrate. The last two financial years reviewed were for the period to June 2013-14 and 2014-15. He did two years at once. We have these reviews, and we have them for good reason. This one was very helpful, and I encourage members to read it. It was a review of the execution of powers under the Serious and Organised Crime (Unexplained Wealth) Act 2009 exercised during the period 1 July 2013 to 30 June 2015.

Like most reviewers, David Smith identified his terms of reference and the basis upon which he would conduct the review. He set out the parameters of what currently operates under our two legislative provisions for confiscation of assets but, most particularly, for serious and organised crime. That is what is pertinent to this debate because we are moving from a model under the Serious and Organised Crime (Unexplained Wealth) Act, which we currently have and which has been operating for the last 3½ years.

This is how it operates: when the DPP reasonably suspects that a person has unlawfully acquired wealth, he or she may apply to the Crown Solicitor to make an application to the District Court for an order. If the order is then made (and I am paraphrasing this) the Commissioner of Police, under the Enforcement of Judgements Act, has certain powers, quite considerable investigative powers, and it is the application of the commissioner's investigative powers which fall into three categories:

those who have been convicted of a serious offence or declared liable to supervision, which is a Criminal Law Consolidation Act provision, and relates to people who have been convicted of serious offences;

persons who have been the subject of a control order under the Serious and Organised Crime (Control) Act, which is of course all our bikies, which we have dealt; and

persons with whom the DPP has authorised the exercise of powers, and there are four statutory preconditions for that.

The application by the Crown Solicitor can only be made upon the authorisation of the DPP, and there is a process that follows from that. It states:

The Crown Solicitor is obliged to prove only that the person, the subject of the application, owns or is in control of the wealth specified in the application…There is no requirement in the said Act that it be proved that the wealth is derived from unlawful activity…

That really relates back to the original legislation, and that has its own powers and limitations. The court under the serious and organised crime legislation, which currently applies, follows that:

Once the ownership of the wealth is proved, it is presumed that the wealth has not been lawfully acquired, unless the person who is the subject of the application proves otherwise…The court has a discretion to decline to make an unexplained wealth order if it determines that it would be manifestly unjust to do so…The burden of proof is the balance of probabilities.

Obviously, it is a process which goes through the court, which has certain protections in it to ensure that you do not inadvertently catch innocent people's assets. It also ensures that we also still bring serious and organised crime convicted people, or people who are subject of control orders, which is in this category of the drug offenders, to deprive them of their wealth and assets. It is a very important piece of legislation.

His Honour David Smith goes on to tell us what has happened in the last two years. Essentially, he outlines what happened in the first 12 months. He confirms that no applications were made. A number of warrants were issued, and there were 76 applications, 73 of which were executed. I think two lapsed and one person died, so in essence three were unexecuted. A number of warrants were issued.

There were five targets identified for the obtaining of information. I think we can assume in that that there were five persons of interest of parties whom the authorities obviously felt ought to be pursued under our current legislation. Ultimately, the report tells us that, of the five persons, four were had been convicted of a serious offence and one was a person against whom the DPP authorised the exercise of statutory powers.

Interestingly, when we come to the 14th and 15th period (2014-15), again there were no applications for unexplained wealth orders made to the District Court in the reporting period; however, 167 applications for warrants were issued and 134 were executed. There is a reference again to some that were not dealt with. Of five targets, possibly the same from the preceding year, according to this report, the authorities (the Crown Solicitor together with SAPOL) made a determination that they would pursue only one.

They may not have finished the investigation of that person, or they may have found that there was inadequate evidence to proceed; that is, he did not have any assets worth confiscating or they were barking up the wrong tree. In any event, in two years there have been no applications under our existing law which only requires that there be someone who is already convicted or under control order and that they have assets—no applications.

His Honour David Smith then goes on to provide an explanation for why, in his view, there has not been any movement in this area. Why has that been the case? Why has the government through its instrumental offices—in this case, the DPP, the Crown Solicitor and the police—not been doing their job? On the face of it, the police have: they have been applying for the warrants, executing them (not just letting them sit in a folder) and obviously undertaking investigations. He is satisfied, on his independent review, that that has happened.

He outlines in this report five reasons why he says there has not been any action in this space, and one of them, which I think is quite concerning is that he identifies that there is, I suppose, a limitation that, where there has been an accumulation of information other than for unexplained wealth pursuit, that information cannot be used in the confiscation of proceeds of crime legislation in certain circumstances. He says:

I query why the lawmakers did not do the same here in South Australia—

Where is the Attorney-General on this? He goes on to say—

and in so doing, draw upon the tested armoury of investigative powers in the said Confiscation Act and also draw upon the experiences of other jurisdictions. I note in this respect that there has been confiscation of proceeds of crime legislation in this State since 1985. In the result, the Confiscation Section of SAPOL and the Crown Solicitor have proceeded warily. I note that, although day to day operational matters have been left to the judgement of the officers of the Confiscation Section, the Section has repeatedly sought the Crown Solicitor's legal advice on what it has characterised as 'process'. Overtime there have been in excess of 50 formal legal opinions provided to SAPOL by the Crown Solicitor's Office.

I think that is a damning report on what the Attorney-General has failed to do in leading the successful application and progression of matters by ensuring that we have a legislative framework in our current legislation that is effective and does not act to sabotage that position.

The CHAIR: Can the member just indicate how much longer she would need to speak for? We have already allowed you 20 minutes on the one question, which is all I am allowed to allow you because that is as long as we gave the Attorney, so can you just give an indication of how much longer you want to speak for?

Ms CHAPMAN: I have four others.

The CHAIR: We have given you 20 minutes. Can you give me a rough idea?

Ms CHAPMAN: I may need another 10 or 15 minutes.

The CHAIR: We cannot do that on one question which is before us.

Ms CHAPMAN: I have done Nos 1 to 3. I did not realise that I had 15 minutes on No. 4.

The CHAIR: No, we told you at the beginning it would be 15 minutes. You said, 'Maybe 18,' and that is why I extended it to 20.

Ms CHAPMAN: Yes, I know, but the Attorney has chosen to do all his submissions on No. 1. I indicated that I would be doing it in two parcels.

The CHAIR: It was still a minute value. We do not want to argue with you. If we can wrap it up in five minutes, that would be great.

Ms CHAPMAN: I will endeavour to do that. Secondly, he notes that the unsuccessful case of Totani in 2010 had a dampening effect, and I think that is a reasonable assumption. I think it had a drowning effect, actually, at the time. It sent the bikies out to a party to celebrate how incompetent the state government had been in prosecuting this legislation when it knew full well that there were major problems with it.

It cost taxpayers a fortune, going up to the High Court and back again, so I do not disagree with that at all, and I do not think there is anything that this Attorney could retrospectively do to remedy what a previous attorney had done in pursuing that course of action; however, it is noted. He then says:

Third. In the wake of Totani, and, in the course of the review period 1st July, 2012 to 30th June, 2013, the Serious and Organised Crime Section of the Crown Solicitor's Office, which was responsible for enforcing the Act, was disbanded. It was suggested by the previous reporter, Mr Alan Moss, that the standards set by the Section were unrealistically high…

Interesting. There was no action. They just got dumped. Fourthly, the review reports:

Investigating whether a person has unexplained wealth is a time consuming exercise in forensic accounting. That has been particularly so for the investigations conducted under this Act. For example, a warrant for the seizure of bank records often cannot be executed in a 'walk in walk out' basis. Rather the investigators have waited often 'for months' while the bank searches and responds to the warrant.

He goes on to detail quite at length how that works and how the current legislation restricts us from getting the contemporary information about who has the account, who is a signatory on it, etc., rather than having some historical capacity to be able to get it, which results in that process. The fifth thing he says is:

As explained, until August 2013, when the Section 43A amendment became operative, the Confiscation Section was unable to utilise, for the purposes of an unexplained wealth inquiry under this Act, intelligence which SAPOL had obtained for other purposes, under other State Acts or laws. Further, the Section has been unable to obtain, let alone use, in its unexplained wealth investigation, information or evidence held by a number of Commonwealth agencies by the exercise of powers under Commonwealth law. That considerable problem will persist [until] there are amendments to a number of Commonwealth enactments. I will explain this problem immediately here under.

And he does; he sets out the detail of that. But, in short, there are a number of impediments to agencies such as Centrelink being able to provide information to our state enforcement agencies. It all relates to privacy and restrictions at the national level.

Where has the Attorney been on this? Has he been asleep at the wheel? This has been going on for years. He has done nothing about it. This report has been in the parliament since October last year. I have read the LCCSC—the legal get-togethers that used to be the old attorneys-general committee. Now, they have police and all sorts of other enforcement groups with them, more's the pity. I think they should have a separate system, and I will keep saying that.

COAG after COAG, this issue has not been resolved. Why has not it been resolved? Why are we not making our current confiscation law effective? Why are we not making sure that these recommendations are read and listened to? Then, at least, seven months later, we would have something from the Attorney-General to say, 'Look, I've sorted that issue out. Here's the bill that we need as extra to complement the South Australian obligation. I've got a report from the federal Attorney that these matters will be raised at the national level.' But, no, they go off to these cities; last time I think it was in Queenstown, New Zealand.

They find places and talk about all sorts of things, but the really important issues like serious crime, like counterterrorism, get a little paragraph if you are lucky. This is the problem with our confiscation laws. This is why South Australia does not get millions of dollars, even under our current legislation, into the coffers of the government, preferably into the funds for victims of crime. We are missing out on millions of dollars because of the incompetence of this government in not progressing and ensuring the statutory reform to enable us to confiscate assets of criminals.

The Attorney has had plenty of time to come in here and introduce serious and organised crime legislation, to dismantle addresses, to put people on lists, which we worked through with the government and sorted out. But when we get a report like this, where is he? He does not want to do it. I do not understand it. The government is on its knees financially. Why has it not ensured that this money is not available to those who have no right, as the Attorney does say, to continue to have access to their own assets?

All we are doing is saying, 'We agree with you. These are bad people. They've got assets that ought to be able to be used as a deterrent, but we want there to be a review process. We want the DPP to set out a set of guidelines.' He has to do that on a number of other things. This is not unique; it is not some new imposition. He has to do it on plenty of other administrative decisions he makes which are subject to review.

That is all we are asking for. We do not want to have a situation, as occurred in Western Australia, where a couple had their house confiscated as a result of its being occupied by someone who was convicted under serious and organised crime drug offences—growing, I think, or production. I cannot recall whether it was trafficking as well, but clearly serious offences.

The CHAIR: In that case—

Ms CHAPMAN: We want that remedied and the government has had this for years. The amendments here are sensible and we just ask the government and, particularly, the Attorney-General, to pull his head in—

The CHAIR: Order!

Ms CHAPMAN: —and get on with it.

The CHAIR: I do not think we need much more said.

The Hon. J.R. RAU: But I cannot let that go without saying—

The CHAIR: Which bit?

The Hon. J.R. RAU: The last bit of that.

The CHAIR: Order!

The Hon. J.R. RAU: The last bit of that—it is the deputy leader doing the Chewbacca defence again. She has attacked me for not pursuing things that I had been pursuing for half a decade.

The CHAIR: And you clearly disagree with that, okay.

The Hon. J.R. RAU: She should phone a friend and ring her friend Senator George.

Ms Chapman interjecting:

The CHAIR: Order!

The committee divided on the motion:

Ayes 21

Noes 17

Majority 4

AYES
Atkinson, M.J. Bettison, Z.L. Bignell, L.W.K.
Caica, P. Close, S.E. Cook, N.F.
Digance, A.F.C. Gee, J.P. Hildyard, K.
Hughes, E.J. Kenyon, T.R. Key, S.W.
Koutsantonis, A. Mullighan, S.C. Odenwalder, L.K.
Piccolo, A. Rankine, J.M. Rau, J.R. (teller)
Snelling, J.J. Vlahos, L.A. Wortley, D.
NOES
Bell, T.S. Chapman, V.A. (teller) Duluk, S.
Goldsworthy, R.M. Griffiths, S.P. Knoll, S.K.
Marshall, S.S. Pederick, A.S. Pengilly, M.R.
Pisoni, D.G. Sanderson, R. Speirs, D.
Treloar, P.A. van Holst Pellekaan, D.C. Whetstone, T.J.
Williams, M.R. Wingard, C.
PAIRS
Brock, G.G. Redmond, I.M. Picton, C.J.
McFetridge, D. Weatherill, J.W. Tarzia, V.A.

Motion thus carried.

The Hon. J.R. RAU: On advice, I move:

That the bill be laid aside.

I seek leave to conclude my remarks.

Leave granted; debate adjourned.

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