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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-04-02 Daily Xml
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STATUTE LAW REVISION BILL

Second Reading

Adjourned debate on second reading.

(Continued from 6 March 2008. Page 2140.)

The Hon. R.D. LAWSON (21:57): I indicate that Liberal members will be supporting the passage of this bill, which makes what are said to be minor technical amendments to a number of acts, most of which are consequential upon the passage of the Statutes Amendment (Domestic Partners) Act 2006. It amends some of those acts which still refer to spouse or de facto partner, where the appropriate terminology is now domestic partner. We certainly support the rectification of the terminology used in those acts. It is necessary from time to time to clean up the statute book by ensuring that references are current and in accordance with whatever developments might have occurred.

The bill was described in another place by my colleague the shadow attorney-general as a 'rats and mice bill'. I am not sure I would accept that denigration of those species. If by 'rats and mice' it means an inconsequential bill, not worthy of notice or beneath serious concern or consideration, I am not sure that is entirely the correct description. However, legislation of this kind is necessary but not significant in the wider scheme of things.

The only matter to which I would draw some attention is the fact that the first provisions of this act amend the Criminal Assets Confiscation Act to correct the references in the definitions of 'proceeds of crime' and the 'instruments of crime'. The correction effected in this act is merely to delete the reference to the De Facto Relationships Act 1996 because that act has been renamed the Domestic Partners Property Act 1996; and, of course, we have no difficulty with that.

But we ought place on the record that, when looking at the Criminal Assets Confiscation Act, wider consideration ought be given to the way in which that act is presently operating and, in particular, to the distinction that is drawn in respect of the proceeds of crime (and I do not think too many members of this council, if any, would complain at all about the proceeds of crime being subject to appropriate confiscation). However, the current definition of 'instruments of crime', which includes property perhaps not owned by the criminal and which renders subject to confiscation property which might not be regarded in any ordinary course of discourse as tainted, is a matter of some serious concern.

Under the Criminal Assets Confiscation Act the Crown can apply for a forfeiture order under section 47 of the act. Forfeiture is mandatory if the application relates to property which is the proceeds of crime. However, it is discretionary if the property is an instrument of the offending activity and the forfeiture may cause detriment or hardship. That is under section 57. So there is, in that particular process, an inbuilt protection.

This is a little technical, but I should mention that forfeiture orders under section 47 are different from forfeiture under a related section, section 64. Forfeiture under section 47 occurs as a result of a court order, but under section 74 forfeiture can occur without a court order. It is automatic upon conviction for a serious offence. So there are two roads to forfeiture—one which occurs automatically when a person is convicted of a serious offence and another as a result of a court having heard argument, having heard and assessed the evidence, deciding that forfeiture is appropriate.

It is widely understood amongst the legal fraternity which deals with matters of this kind that the DPP in this state is not applying for forfeiture orders under section 47 because such orders are discretionary and judges will invariably exercise the discretion which they have to relieve innocent dependants from hardship. So what the Director of Public Prosecutions does is apply for a pecuniary penalty order under section 95 of the act and, from the point of view of the prosecution or someone seeking forfeiture, that is an attractive proposition because an order that is made under section 95 is not limited to proceeds of crime but can attach to an instrument of the offence which is owned by the offender. By this means the Director of Public Prosecutions is able to obtain orders against property which is not the proceeds of crime but was merely used in a crime and which may be partly owned by an innocent third party.

The Hon. Sandra Kanck: That is a fundraising effort.

The Hon. R.D. LAWSON: I would not say it is necessarily that. It is a case of the Director of Public Prosecutions using a statute which this parliament has passed in a manner which the office of the director clearly considers appropriate. There was a recent decision of Judge Tilmouth in the case of DPP v Condo (it was decided as recently as 13 March this year), in which an application by the DPP on this general topic was rejected, although I think it is appropriate that parliament awaits the decision of the Court of Criminal Appeal in the case of George v DPP, which I think was argued at the end of February this year, to see whether the effect of the legislation is as I have described.

If it is as I have described, it may be that amendments to this legislation will be necessary. My comments in this regard are, however, something of a byway because, as I said at the outset, what we are currently amending in the Criminal Assets Confiscation Act is merely an incorrect reference to a statute, namely, a reference to the De Facto Relationships Act, which has been renamed the Domestic Partners Property Act. With those brief comments, I indicate that the opposition will be supporting the passage of this bill.

Debate adjourned on motion of Hon. I.K. Hunter.

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