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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2007-10-23 Daily Xml
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CRIMINAL ASSETS CONFISCATION (SERIOUS OFFENCES) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 25 July 2007. Page 492.)

Clause 1.

The Hon. P. HOLLOWAY: Essentially, of course, this bill was designed to deal with cases where persons could—

The Hon. Sandra Kanck interjecting:

The Hon. P. HOLLOWAY: That is right. The bill was specifically designed for cases where someone, such as David Hicks, could find themselves profiting from their actions through being able to publish their version of events, and the government sought to ensure that that did not happen. The Hon. Robert Lawson moved an amendment to clause 1, which is really not related to the Hicks' case in any way, shape or form or any like cases, but it was to do with unexplained wealth.

As I indicated when we last dealt with this bill some months ago now (I think it was before the winter adjournment), the government has already announced that it supports unexplained wealth provisions, but it did not necessarily want to adopt the particular model which was based on the Western Australian act and which the Hon. Robert Lawson introduced in just the last day or so before the winter adjournment. The opposition has moved the first of a series of amendments designed to put in the Criminal Assets Confiscation Act provisions on unexplained wealth declarations taken from the Western Australian act.

The position of the government on this question is that it does not oppose the concept of unexplained wealth declarations but it opposes the amendments being made at this time and in this way. It is conceded by all participants in the debate that these amendments bear no relationship to anything that is contained in the bill before the chamber except the act amended. They bear no relationship whatsoever to the bill on the same subject moved by the Leader of the Opposition in another place. One can therefore only speculate on the motives of the mover of the amendment. It may be that unexplained wealth orders or some variation on that system is the way we should go in South Australia, but it does not necessarily follow that we should adopt the provisions suggested by the opposition. Both lawyers and police officers in the legislation and the Legal Policy Section of the Attorney-General's Department are working on this kind of provision as part of a package aimed at disrupting and attacking the activities of criminal motorcycle gangs in South Australia.

The government does not want to pre-empt the work of those senior officers nor be in a position where the provisions would have to be amended again. It may well be that mere transcription of the Western Australian provisions is not the way to go. Indeed, should the committee pass the amendments placed on file by the opposition, it may well be that they would not be proclaimed until the government had finalised its own version of the provisions anyway. That would make this set of amendments debated in this place an exercise in legislative futility.

It has been conceded by the Hon. Mr Lawson that there has been no consultation with the Law Society on the precise form of these amendments proposed or indeed anyone else. He is very keen for that to be done when government action is up for debate in this place. Oddly enough it seems from the debate that he does not want to do this at all for himself and for his own amendments: he wants the government to do it for him and for his amendments, and that, to say the least, I would suggest is inconsistent.

I know that other models of unexplained wealth have been raised, as have issues as to whether the amendments would adequately cover corporate wealth as opposed to individual wealth, and these matters are being addressed actively by senior police officers and officers within the Attorney-General's Department who are working on these provisions. It is the government's view that, rather than just tacking these on to the bill, which is essentially to do with the question of David Hicks and like situations, we should not support the amendments at this stage. The government has already indicated that we will introduce our own package of measures that look at issues such as that.

The Hon. R.D. LAWSON: The minister's bringing this bill on today raises an important fundamental question. I remind the committee that on the last occasion we met in relation to this bill the Hon. Nick Xenophon stood and said that he was attracted to the proposition being advanced in our amendments, as did a number of other speakers. Immediately after the Hon. Mr Xenophon completed his remarks, in which he indicated support in principle for what the opposition amendments were doing, the minister said:

As the numbers are now it is obvious that if we were to vote on this it will be carried. I think the most sensible thing is to report progress.

The minister said, after the Hon. Mr Xenophon had indicated support, that it would be wise for us to—

The Hon. P. Holloway: There was also the Hon. Mr Parnell. Do you recall his comments?

The Hon. R.D. LAWSON: There were a number of members. The point is that this bill is brought in when the Hon. Nick Xenophon has resigned; the government is refusing to appoint a replacement and is now seeking political advantage from the fact that the Hon. Mr Xenophon is no longer here. We object in the strongest possible terms to the subterfuge being engaged in by the government.

This bill was last in committee on 25 July—weeks ago. The government has not, at any time while the Hon. Mr Xenophon was here, sought to bring the bill back on and not accorded it priority in any of its various communications. The Leader did not have the numbers and reported progress; and now, opportunistically, he thinks he has the numbers because Mr Xenophon is not here, so let us strike while we can before we appoint a replacement and while the numbers in this place are changed—let us sneak this through. There is an important point of principle. It is our belief that when someone dies or resigns they ought to be promptly replaced so that no government, opposition or Independent can seek political advantage from the fact that the council does not have a full complement.

The CHAIRMAN: Order! The Hon. Mr Lawson should keep his remarks to the bill, as this has absolutely nothing to do with it.

The Hon. R.D. LAWSON: It has everything to do with the bill, with respect.

The CHAIRMAN: Are you presuming that the government knew the Hon. Mr Xenophon would retire?

The Hon. P. Holloway: If the Liberal Party wants to do it, let them do it. It will be your decision.

The Hon. R.D. LAWSON: If the government had been motivated by those considerations it would have brought this bill back on during all the weeks of sitting we have had since that time. It has now had ample opportunity to investigate the matter. The minister says that lawyers and police are investigating this very issue at the moment. We have heard all this before. This government has announced that it will be tough in relation to bikies and organised crime and, when the opportunity arose in relation to the confiscation legislation, it wimped out. We are giving it the opportunity to embrace criminal assets confiscation, which is effective and has been proven in Western Australia. The government is still seeking to avoid the issue because it wants to take credit for doing that which it has been promising to do for months and which it has not done.

The Hon. P. Holloway interjecting:

The Hon. R.D. LAWSON: Minister, you might care to move further amendments if you think my amendments are not adequate.

The Hon. P. Holloway interjecting:

The Hon. R.D. LAWSON: The minister has indicated 'we want to bring in our own bill'. It is as simple as that. We do not seek to get particular credit for this. When the opportunity arises, when matters come before the council and a bill is open for discussion and debate, we seek to put forward effective proposals to improve the measure, rather than wait around until the government at some time in the future introduces some other bill. Our first objection to this bill coming on is that the government is opportunistically endeavouring to take advantage of the absence from this chamber of Mr Xenophon, more particularly the absence of a replacement for Mr Xenophon.

The Hon. P. HOLLOWAY: I think I should say something about that outrageous statement. It is only a week ago that Mr Xenophon resigned. I do not think any member can produce a case where the vacancy has been filled within a week of someone resigning. A ministerial statement in relation to Mr Xenophon's replacement was made by the Premier in the other place and it has been tabled in here today. It has nothing to do with it. The timeliness of this measure is indicated by Mr Hicks' release. Obviously, it is one of the cases that would be covered by this bill, if it is enacted. We can either deal with it or not deal with it.

The Hon. R.I. Lucas interjecting:

The Hon. P. HOLLOWAY: There are a couple of weeks to go. If it is to be proclaimed in time it is appropriate that we deal with it. If Mr Hamilton-Smith has no control over his members in the upper house, let that be demonstrated.

The Hon. R.D. LAWSON: The amendment presently before the committee is consequential. I ought to put to the committee what it seeks to do. It seeks merely to insert a changed definition, which will be part of a series of amendments to allow courts in South Australia to make unexplained wealth declarations. I should explain precisely what is encompassed because that was not done on the previous occasion.

It is important to emphasise that these are declarations that will be made by a court. As I previously mentioned, the scheme which has been adopted in our amendments is based upon almost precisely that which has been adopted successfully in Western Australia where unexplained wealth declarations have been made. The essence of the scheme is that an onus is cast upon a person who has unexplained wealth to satisfy a court that it was gained by legal means. The declarations under this scheme will be made by the Supreme Court.

Clause 5 provides for those declarations to be made, and also for the manner in which the court will calculate the unexplained wealth, being the difference between the legitimately or lawfully gained wealth and the value of the respondent's gains for which he has no explanation. Funds obtained from an unexplained wealth declaration will be paid to the crown. There are due legal protections, the principal one of which is that the declaration is made by a court so that usual legal process will apply.

We know that some members of the legal profession—certainly, the members of the Criminal Law Committee—do not favour our existing criminal assets confiscation regime, and there is no doubt that they do not favour extending that scheme to these declarations. That is a perfectly reasonable position that they put, mainly on the grounds that this is not part of the common law. We take a different view in relation to this matter and, in answer to that criticism, ours is that, given the growth of the power of organised crime and the sophisticated methods used by criminals to have the benefit of their ill gotten gains but disguise the source of them, new law enforcement techniques are required.

Given the fact that these have already been introduced in Western Australia and are, according to the reports of the DPP in that state and the government of that state, working satisfactorily, we believe that they ought to be adopted here. We believe that this chamber has an opportunity to present to the government and to the other place a scheme which ought to be debated there, and we will see whether or not the government is prepared to support it. I seek support from members for these amendments.

The Hon. P. HOLLOWAY: I again make the point that this bill was introduced to deal with the Hicks case and like cases. The government does not dispute what the Hon. Robert Lawson is saying in relation to unexplained wealth; however, it does have enormous implications to introduce something as significant as an unexplained wealth provision, with all the implications that has for civil liberties and everything else. To make such a major legislative change on the back of a simple bill dealing with David Hicks is not, in our view, the way that we should proceed.

Again, I remind members that, whenever we introduce government legislation, the Hon. Robert Lawson wants to know whether we have consulted with the Law Society and whether there is judicial comment and so on, and that is fair enough. When governments introduce bills, unless there is an emergency—which occasionally there is—by and large there should be broad consultation about it. Again I make the point about introducing such a major and significant amendment: the government has been looking at this and other models. It is not just the Western Australia model: there is a Northern Territory model which, according to at least some views I have heard from police, is superior because it looks at corporate wealth, where this model does not.

The Hon. Mr Lawson's suggestion that we should try to amend his amendment on a bill that is essentially about David Hicks is not really the way we believe we should be proceeding on such a major issue as an unexplained wealth provision. We do not dispute the need for it, but we need to look at it very carefully as a piece of legislation that has been broadly consulted on. That will happen in the future, but this is not the way to do it, and that is why we are opposing the amendment; it is not that we disagree with it in principle. Again, I make the point that at least some preliminary advice I have had is that there may well be better models for doing it, and they are actively being looked at by the SA Police and the Attorney-General's Department.

The Hon. D.G.E. HOOD: Members will recall, no doubt, that last time we discussed this matter Family First indicated its opposition to the amendments and our support for the bill in principle. We feel very strongly that we certainly do not want David Hicks making any profit from telling his story, and for that reason we think the bill is appropriate, but we do strongly support the idea of unexplained wealth provisions existing in South Australian law, and indeed we are impatient to see them introduced. I have a question of the minister. Will he indicate to the chamber in what time frame he would expect government legislation to be presented to the chamber which would deal with unexplained wealth provisions?

The Hon. P. HOLLOWAY: We were hoping to have a package of legislation, and I am sure we will get some of it in before the end of this year, but there are a number of aspects to it. Certainly, if it is not in by the end of this year, we would hope that it would be in very early in 2008.

The committee divided on the amendment:

AYES (9)

Dawkins, J.S.L. Kanck, S.M. Lawson, R.D. (teller)
Lensink, J.M.A. Lucas, R.I. Parnell, M.
Ridgway, D.W. Schaefer, C.V. Stephens, T.J.

NOES (9)

Evans, A.L. Finnigan, B.V. Gago, G.E.
Gazzola, J.M. Holloway, P. (teller) Hood, D.G.E.
Hunter, I. Wortley, R. Zollo, C.

The CHAIRMAN: There being nine ayes and nine noes, I give my casting vote for the noes.

Amendment thus negatived; clause passed.

Clause 2 passed.

Clause 3.

The Hon. R.D. LAWSON: I will not be moving this or subsequent amendments, all of which are consequential upon the initial amendment, which was lost.

The Hon. M. PARNELL: I note that this clause involves the insertion of the concept of a foreign offence. I note in the report accompanying the bill that it states:

A regulation will be drafted declaring that any offence triable by the United States Military Commission constituted under...

After which the formal reference is inserted. Can the minister advise whether it is sufficient that an offence be triable rather than a person be found guilty of any offence?

The Hon. P. HOLLOWAY: My advise is that that is correct, that is, they do not have to be found guilty.

The Hon. SANDRA KANCK: That is quite extraordinary: we have a situation where this bill, although it is being targeted at David Hicks, is open to being used against any Australian citizen. They do not even have to have been tried, let alone found guilty. All that matters is if there is an offence that is triable. That is appalling.

The Hon. P. HOLLOWAY: I have just had some other advice. Clause 4 says 'whether or not a person is convicted of the offence'. So, the issue is not whether you are actually tried but whether you are found guilty or not.

The Hon. M. PARNELL: My question for the minister is: does the government believe that trials under United States military commission processes are fair trials? Are they fair enough to include into South Australian law? If they are fair enough to be included in South Australian law, is the government contemplating any such trials to be enshrined in state law?

The Hon. P. HOLLOWAY: It is not really a question of what I think. There is all sorts of interesting information. If one believes what the media have been saying recently, apparently the transfer of David Hicks to prison here, and the time, is all due to some deal that was done between Dick Cheney and John Howard. Obviously, that was a report from some military observer. Whether or not it is true, I do not know, but I think it says a lot about the whole process. It is not really up to me to speculate on those issues. The fact is that the government has put forward this bill because we support the merits of it.

The Hon. SANDRA KANCK: As the minister's government supports the merits of it, as he puts it, in relation to David Hicks, does the government have any intention of it applying to any other Australian citizens at any other time in the future?

The Hon. P. HOLLOWAY: Clearly, if similar cases arise then I suppose the legislation would have application. This is not the David Hicks bill but, clearly, the circumstances that have arisen out of the David Hicks case give rise, in the government's view, to the need for such a bill. I guess there may well be other similar cases, but that is really speculation.

The Hon. SANDRA KANCK: In terms of the wording of this, we are including 'foreign offences' under 'serious offences'. As the act stands, does it mean that once we add in section 4 it could apply to any South Australian at any time, whether or not they are convicted of an offence?

The Hon. P. HOLLOWAY: The point is that a person has to be found guilty of the serious offence, as it is defined and as it will be declared by the regulation. The first part is that you have to be convicted of it and then the foreign offence has to be declared by the regulations to be within the ambit of the definition. So, there are two steps.

The Hon. SANDRA KANCK: I am trying to read clause 3 in relation to clause 4, and the end of clause 4 says 'whether or not a person is convicted of the offence'. So, I am just seeking further clarification.

The Hon. P. HOLLOWAY: I think that part of clause 4 is to distinguish between guilt and conviction. A person can be found guilty but not necessarily convicted. I am advised that the reason for the reference in clause 4 as to whether or not a person is convicted of the offence is really to make that distinction between both the finding of guilt and whether you are convicted or not. In other words, I suppose someone can be found guilty but not have a conviction recorded.

The Hon. SANDRA KANCK: So, the difference is between guilt and being convicted, and it is very obvious that from time to time we do have someone who is found not guilty and there is evidence that shows that they are and everyone believes they are and so on; but is this not setting a new precedent—let us say that someone has been found not guilty, or they are not convicted of the particular offence—where the executive will effectively determine guilt? Is that not what is happening? I would appreciate it if the Hon. Robert Lawson, with his extensive legal experience, would comment on that.

The Hon. P. HOLLOWAY: The point here is that the honourable member seems to be suggesting retrospectivity. The retrospectivity, if you could call it that, would apply only if the person was convicted before the foreign offence was declared to be a serious offence under this act. So, the key issue there is whether or not the foreign offence is declared to apply to the act. If you had been convicted previously, then in that sense it would be retrospective. The issue is not whether or not you are convicted: the issue is the declaration. The only executive power, if you like, that the honourable member appears to be referring to is the declaration that the foreign offence comes within the ambit of the definition. That is the executive power which, presumably, could be disallowed by this parliament.

The Hon. R.D. LAWSON: Following up on the Hon. Sandra Kanck's question, I should ask the minister this: given that the serious offence that will trigger the operation of the confiscation legislation is one that must be committed irrespective of whether or not the person was subsequently convicted of having committed that offence, how will that operate in practice? Will there have to be a criminal trial here? Will proof have to be beyond reasonable doubt before this principle can be adopted? It is clear that the definition includes whether or not the person was convicted at the earlier stage of that offence but, in order to trigger the operation of this, will it be necessary to have another criminal trial here to establish that the serious offence was actually committed?

The Hon. P. HOLLOWAY: The answer to that is no. Obviously, it will depend on the country in which the offence was committed, but the answer is no; it will not be necessary to have another trial in Australia.

The Hon. M. PARNELL: Again, clause 3 refers to foreign offences being declared by regulation. Will the minister explain what policy or what guidelines exist that will help the executive to determine the types of offences that will be included in regulations? Is it only terrorism offences? Could it be potential offences against property or offences against a person? Do any guidelines exist, or will the executive be making random decisions (if I can call them that) on a case-by-case basis?

The Hon. P. HOLLOWAY: Ultimately, given that it is being done by regulation, it is the parliament that will determine the validity of the regulations. It is not correct to say that it is the executive; the parliament itself will determine whether regulations are ultimately allowed or not.

The Hon. M. PARNELL: I understand that the parliament will determine whether or not to disallow. My question is: what guidance can the minister give us so that we know what types of regulations will be included? Are there any guidelines at all about the types of foreign offences that are proposed to be caught by this legislation?

The Hon. P. HOLLOWAY: The bill itself contains the answer. The definition of 'serious offence' in the act means an indictable offence, or a serious drug offence, or an offence against section 83(3) of the Criminal Law Consolidation Act, or sections 34 or 44 of the Fisheries Act, or section 99 of the Liquor Licensing Act, or a provision of the Lottery and Gaming Act, or sections 47, 48, 48A, 51 or 60 of the National Parks and Wildlife Act, or section 28(1) Part A or 41 of the Summary Offences Act.

What we are doing here is adding a new section; it will be a foreign offence declared by the regulations to be within the ambit of the definition, so it will lie within that framework. This bill has been drafted to deal with the issues raised by the Hicks case but, in relation to others, obviously we are in new territory in relation to this.

Clause passed.

Clause 4.

The Hon. SANDRA KANCK: I have some questions on clause 4 (which is the application of the act) which follow on from some of the questions I asked in the second reading. Given that ostensibly this is about David Hicks, although we now know it could apply to some unknown person in the future, I am still going to apply my questions with respect to Mr David Hicks. The minister did answer some of the questions I asked, but not all of them. One of the questions I asked was whether or not the government will have access to Mr Hicks' bank account in order to check what money is going into it and the source of that money.

The Hon. P. HOLLOWAY: The answer to that lies within the provisions of the Criminal Assets Confiscation Act itself. What we are doing here is amending the core act. There are clauses there in part 2 about freezing orders. There is notice of a freezing order to be given to financial institutions in clause 20 of that act. There are provisions about the duration of those freezing orders. There is provision for urgent applications. I think the general answer is that the access that one would have in relation to the Hicks case would be the same as would apply to any other individual subject to this act; it would not be different.

The Hon. SANDRA KANCK: The question then arises about people who give gifts to Mr Hicks. How will the government ascertain the source of money going into his account? During the second reading debate I referred to a situation where David Hicks gives an interview for a documentary and, although he cannot in any way make any money from that, the documentary maker decides to send David Hicks a $50 Christmas present. Will that be deemed, under this legislation, to be a payment and, in that case, will it be seized?

The Hon. P. HOLLOWAY: Again, the answer is that it would lie under the provisions of the Criminal Assets Confiscation Act 2005 and not under the provisions of this bill. The relevant section is section 7, Meaning of Proceeds and Instrument of an Offence, which provides:

(1) For the purposes of this Act, the following rules apply when determining whether property is proceeds or an instrument of an offence:

(a) property is proceeds of an offence if it is—

(i) wholly derived or realised, whether directly or indirectly, from the commission of the offence; or

(ii) partly derived or realised, whether directly or indirectly, from the commission of the offence,

whether the property is situated within or outside the State;

Ultimately, it would be up to a court to determine whether that provision applied. Subsection (1) provides:

(b) property is an instrument of an offence if it is—

(i) used in, or in connection with, the commission of an offence; or

(ii) intended to be used in, or in connection with, the commission of an offence,

In the case of the honourable member's question, subsection (1) would be the relevant provision.

The Hon. SANDRA KANCK: I am not sure whether or not I have an answer. So, any time any money goes into Mr Hicks' account, is it likely to be challenged in court?

The Hon. P. HOLLOWAY: That would obviously be up to the authorities—presumably the police. If they believed or had good reason for believing that a large sum of money had gone in, and that subsection of the act applied, presumably they would take action. Obviously, they would make the judgment in the first instance as to whether action would be taken under the act.

The Hon. SANDRA KANCK: Another question I asked in my second reading contribution that did not get an answer was about Mr Hicks' experiences in Serbia. When he went there, he was fighting for the side Australia was supporting. So, if he writes a book about his experiences in Serbia, will any profits from that be confiscated?

The Hon. P. HOLLOWAY: In the case of Mr Hicks, if he were gaining from the proceeds of a story, the reason he would do so would be his notoriety and not anything he might have done in Serbia, where he was not convicted of an offence. I guess that is the judgment that would be applied and, ultimately, up to the court to determine. The police would take action and prosecute and, ultimately, the court would determine whether or not it was a fair interpretation of the act. It would be the government's view that it would be covered in that sense—that, if he were profiting, he would be profiting because of his notoriety in relation to the foreign conviction, rather than other actions. Ultimately, a court would determine that.

The Hon. SANDRA KANCK: If I read that interpretation correctly, it seems to me that it could be possible that, if he writes about his life prior to going there and makes a profit on that, he could find the assets confiscated. In relation to that, he was charged with providing material support to the Taliban; in particular, it was about guarding a tank. Again, I asked about his experiences in Serbia. He spent five years in a US prison. He was not charged with being in a US prison; that is not the crime—being in prison. If he writes a book about his experiences in prison (which have nothing to do with what he was charged with), would any profits from that also be seized?

The Hon. P. HOLLOWAY: Again, if it were judged to be as a result of the notoriety of the case that he were profiting, ultimately a court would determine that. He could be charged with that but a court would determine the core issue—whether the source of that income (and remember that we are talking about the Criminal Assets Confiscation Act: the assets, if you like), was the result of the crime being committed. It is how the court interprets this act that will determine those sorts of cases. It would have to make the judgment as to whether the profit, through selling the story, was the result of his notoriety as a result of the crime or whether that could be divorced from the crime itself. Ultimately, that is something that the court would assess.

The Hon. SANDRA KANCK: Could the minister explain where notoriety comes into it? I have a copy of the act beside me, so can he explain where notoriety comes into it? Notoriety does not seem to be mentioned in the bill as one of the reasons whereby the profits could be taken.

The Hon. P. HOLLOWAY: No, but it does appear under the Criminal Assets Confiscation Act, division 2, section 110, subdivision 1, Literary Proceeds Order. Section 110, Meaning of Literary Proceeds, provides:

(1) Literary proceeds are any benefit that a person derives from the commercial exploitation of—

(a) the person's notoriety resulting from the person committing a serious offence; or

(b) the notoriety of another person involved in the commission of the serious offence resulting from the first-mentioned person committing the offence.

Notoriety comes in under Literary Proceeds Order, section 110 of the principal act.

The Hon. SANDRA KANCK: It refers to 'the person's notoriety resulting from the person committing a serious offence'. There was no serious offence committed by David Hicks in being held in Guantanamo Bay for five years, so why would a book about his experience of being there be held to be covered by this legislation we are passing?

The Hon. P. HOLLOWAY: I suppose the argument would be that his notoriety resulted from (and this is what the subsection provides) 'notoriety resulting from the person committing a serious offence'. I guess, ultimately, the court would make that judgment about whether the notoriety resulted from the person committing a serious offence, and this particular bill brings the foreign offence under that definition of 'serious offence'. He committed the serious offence before he was gaoled.

The Hon. M. PARNELL: I find the minister's answers quite remarkable. Effectively, the minister is saying that Mr Hicks has forfeited the right to profit from any literary endeavour, because the argument goes that his notoriety flows from the fact that he was in Guantanamo Bay and ultimately pleaded guilty to an offence. It seems to me, therefore, that if Mr Hicks were to write a book of poems, a religious work or a book of children's stories—or, indeed, any time that Mr Hicks puts pen to paper in future—it will always be open to the government to say, 'It's only because of his notoriety that people are interested in buying his book, therefore we will not let him profit from it.' I would like the minister to confirm whether my interpretation is correct that if in fact that is the source of his notoriety we are effectively prohibiting him from ever putting pen to paper and profiting from it?

The Hon. P. HOLLOWAY: Not necessarily—

The CHAIRMAN: I thought the minister had explained that that was up to a court to determine, not the minister.

The Hon. P. HOLLOWAY: You are quite correct, as always, Mr Chairman. There must be a causal connection between the profiting and the notoriety. I suppose that if David Hicks or someone else in this situation did write a book of poems, and if the author was promoted because of his notoriety, one could argue it, but a court would have to determine whether or not there was a causal relationship. However, if he had published them in a literary review under a pseudonym, or something like that, you would probably argue that there was not a connection. Ultimately that is up to the court to determine. I think that the moral and legal principle here is fairly straight forward. Remember that literary proceed orders are not new. They are not being introduced for the benefit of David Hicks. This bill will cover the Hicks' case. It might have been inspired by the Hicks' case but only because of the foreign connection, and that is how the bill amends the Criminal Assets Confiscation Act.

The original provisions in relation to literary proceed orders or profiting from writing stories about crime were around before the Hicks' case came to notice. Clearly, the legislation is designed for other people who might be convicted of a series of drug crimes, murder or other things and who are writing stories about a particular crime. I do not think there is anything particularly new in relation to the principles of literary proceed orders that the Hicks' case is doing other than that we are bringing in the foreign aspect under the serious offences provision.

The Hon. R.D. LAWSON: The Hon. Ms Kanck brought me into the debate in relation to the effect of acquittals and the quashing of convictions. I omitted to mention to her that section 63 of the act states that a forfeiture order under the existing regime against a person in relation to a serious offence is not affected if the person having been charged with the offence is acquitted or the conviction is quashed. As the minister has been explaining, that particular aspect is not new, nor is it new to say that, for example, if Martin Bryant were to publish a book of children's stories or a text book on psychology or arithmetic—which would be successful only by reason of his notoriety as a mass murderer—he would be subject to these provisions. Section 112 of the existing act does list the matters a court must take into account in deciding whether or not to make an order. So, there is a discretion that one would hope would be exercised judicially.

Clause passed.

Title passed.

Bill reported without amendment; committee's report adopted.

Third Reading

The council divided on the third reading:

AYES (15)

Dawkins, J.S.L. Evans, A.L. Finnigan, B.V.
Gazzola, J.M. Holloway, P. (teller) Hood, D.G.E.
Hunter, I. Lawson, R.D. Lensink, J.M.A.
Lucas, R.I. Ridgway, D.W. Schaefer, C.V.
Stephens, T.J. Wortley, R. Zollo, C.

NOES (2)

Kanck, S.M. (teller) Parnell, M.

PAIRS (2)

Wade, S.G. Bressington, A.


Majority of 13 for the ayes.

Third reading thus carried.

Bill passed.

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