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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-10-29 Daily Xml
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SERIOUS AND ORGANISED CRIME (UNEXPLAINED WEALTH) BILL

Committee Stage

In committee.

Clause 1.

The Hon. P. HOLLOWAY: I take this opportunity to reply to two questions raised by the Hon. Mr Lawson that I did not address in the second reading reply. First, the honourable member asked why the standard criminal intelligence provision in clause 6 allows criminal intelligence to be provided to the Attorney-General. The answer is that there are some conceivable situations in which that might need to happen. Under clause 35 of the bill, the Attorney-General is obliged to conduct a review of the operation of the act. This is one of the accountability measures contained in the bill. It would be intolerable if the Attorney-General was told that, despite being responsible to parliament for the review of the act, he or she should not be given the necessary information in order to make a judgment about the utility of the act.

More generally, the act will be committed to the Attorney-General. The office functions as the chief law officer. The Attorney-General is responsible to the parliament and the public to ensure that the resources of the state are spent wisely and that the executive is kept accountable. Again, it would be intolerable if the Attorney-General was told that he or she could not be given much or any necessary information in order to make judgments in his or her ministerial capacity.

The honourable member also asked about the drafting of clause 7. He said that he would prefer a wording to the effect that 'the Crown Solicitor shall not act on instructions'. I have consulted parliamentary counsel, as this is a drafting matter. I am advised that parliamentary counsel is of the opinion that the words drafted mean what the honourable member desires and that in parliamentary counsel's opinion the drafting should stay as it is to achieve that result.

The honourable member also questioned the constitutionality of unexplained wealth legislation. He might like to know that the Northern Territory provisions have been challenged on all possible grounds, including Kable, and survived. The decision is that of the Northern Territory Court of Appeal in Burnett v. the DPP (2007) 180A.Crim.R41.

I also take this opportunity to address the amendments to the bill proposed by the Hon. Mr Lawson. The effect of the amendments to the bill proposed by the Hon. Mr Lawson is to substitute the DPP for the Crown Solicitor throughout. The Crown Solicitor has no role at all under the amendments. The effect of the amendments proposed by the government is that the role is split between the Crown Solicitor and the DPP. The DPP acts as the independent gatekeeper and the Crown Solicitor does the litigating.

We now come to the question of the role of the Crown Solicitor. It is true that the two existing regimes in Western Australia and the Northern Territory use the DPP. That is likely to be because the relevant provisions are in their confiscation legislation and not as here in a separate act. The government takes the view that it is the Crown Solicitor, rather than the DPP, who should take on the litigation role. The reason for this is simple. This is straightforwardly a civil option action. It is not a prosecution; there is no necessary connection to criminal proceedings.

The Criminal Assets Confiscation Act 2005 proceedings, while civil in terms of onus of proof, are proceedings which involve assets that are crime related. Confiscation often follows conviction. That is not so with unexplained wealth. It does not matter whether or not the assets are crime related. What counts is whether the person who controls the asset can explain that the assets were lawfully obtained. It is enforced as a civil judgment. Interstate matters will be governed by the commonwealth Service and Execution of Process Act. These are not matters with which the DPP is concerned, and nor should they be. The government maintains that its position is the right one.

The Hon. R.D. LAWSON: I thank the minister for those indications. I point out that the concerns of the opposition regarding the entire exclusion as originally proposed in the bill of the DPP were unwarranted. It led us to suspect that the government's antipathy towards the present occupant of that office and the hostility so often demonstrated by the Attorney-General towards the Director of Public Prosecutions lay behind the exclusion in the bill as originally proposed of any role for the Director of Public Prosecutions.

The director is a statutory authority created by the Director of Public Prosecutions Act. The director has statutory independence; he reports annually to the parliament. The powers of the Director of Public Prosecutions in section 7 of that act include the initiation of civil proceedings for contempt and also to carry out any other function assigned by any other act. That act provides that, in any legal proceedings, the Director of Public Prosecutions can be represented by the Crown Solicitor, amongst others.

We believed that the director was the appropriate functionary not only to initiate but also to prosecute unexplained wealth declarations. We note that that is the position under the Northern Territory criminal property forfeiture acts which contain provisions about unexplained wealth. It is also the provision under the relevant Western Australian legislation, where section 11 of the Criminal Property Confiscation Act 2000 vests in the Director of Public Prosecutions the power to apply for an unexplained wealth declaration.

I remind the committee that the director already has power under the Criminal Law (Sentencing) Act to obtain restitution of property, and also to obtain orders for compensation for injury, loss or damage. I also remind the committee that our Criminal Assets Confiscation Act provides in section 47 that a court must, on the application of the Director of Public Prosecutions, make a forfeiture order; and, likewise under section 24 of that act, restraining orders are made on the application of the DPP.

It was for those reasons that we believed that it was appropriate that the director have vested in him or her (the holder of that office) the power to commence and prosecute proceedings. I make that comment now in response to the minister's opening comment rather than repeating it later when we get to the specific amendments relating to this aspect of the matter. I do have one question on clause 1. This act will come into operation on a day to be fixed by proclamation, so will the minister indicate when it is intended to proclaim the legislation to come into operation and, if that is not to be reasonably soon, what reason is there for any delay?

The Hon. P. HOLLOWAY: My advice is that before the bill can be proclaimed the government will need to consult with the DPP, SAPOL and the Crown Solicitor. Depending on the outcome of amendments, those bodies will have to set up protocols—which are quite complicated—so it may take some time. Obviously, it is the government's wish that this bill be proclaimed within a reasonable time, but it will depend on the establishment of protocols between those three parties.

The Hon. DAVID WINDERLICH: I have made it clear already that I will be rejecting this bill. This is yet another bill in a trend or, in fact, a free fall or headlong plunge into a secret state mentality. We started down this road with the terrorism legislation, where the threat we sought to avert was potential mass deaths from suicide bombing. It moved to organised crime, where the threat we sought to avert was street violence, extortion and involvement in the drug trade. Just the other day we dealt with legislation in relation to hydroponics, where the threat was a link to the drug trade and organised crime. Today we are dealing with unexplained wealth and, shortly, we will be dealing with second-hand goods. With each step, the link between the threat and the measures we are taking becomes more tenuous.

As was highlighted by the Attorney-General in his second reading explanation, already there is the power to confiscate the proceeds of crime under the Criminal Assets Confiscation Act. However, that act has the slight inconvenience of requiring proof that a person has been convicted of a serious offence or that a person is suspected on reasonable grounds of having committed a serious offence.

This bill would dispense with the requirement for proof. In each step of these pieces of legislation—or most of them—no good evidence has been provided for the measure taken. There has been no clear evidence of how serious the threat is that we are dealing with. There has been no clear argument about whether the measure will work. Given the dynamic nature of crime, there has been no discussion about whether we will simply drive criminal elements into another secret society and then have to follow them down that burrow with more repressive legislation that will affect another industry sector or group in the community. For example, organised crime may move into mobile phones. It might be a good way to get lots of information about people. Will we then need to apply criminal intelligence and reverse the onus of proof in that sector?

Last night we spoke about voluntary euthanasia and there was talk about declining moral standards, or that is a concern often voiced during that type of debate. I believe this trend of legislation is evidence of declining moral standards of another sort. We say that we value freedom, but we dispense with it just for the faintest whiff of additional safety. We say we are concerned about abuses in one sector, but today, no doubt, this chamber will vote for legislation under which there is no need to prove a case. Decisions will be made on the basis of secret evidence and there is no prospect of appeal or review.

A recent bill introduced by the Hon. Robert Brokenshire was subjected to an intense grilling by the government. It wanted evidence about each and every measure—about the costs and value of every clause—yet we do not subject this legislation to the same sort of scrutiny.

I think social democracy went with Dunstan. We are now closing the door on liberal democracy. It is clear that no-one believes in it any more. It is clear from this legislation that on important matters we have extraordinary trust in the authorities that, for some reason, we do not have in other areas not related to law and order, so we are prepared to let decisions be made in secret.

We are prepared to dispense with the presumption of guilt when we talk about serious offences and serious penalties. Well, why not go the whole hog? Why not just make these defaults in every area of law? Why do we need the presumption of innocence? Why should the decisions of the authorities ever be open to scrutiny? If they are not open to scrutiny in matters as important as these, why do they need to be open to scrutiny in much less important matters?

I think those of us who are arguing for an ICAC—and this excludes the government because it is at least being consistent—on the ground of calling for greater scrutiny are, in fact, being inconsistent in continually agreeing to legislation such as this with no effective watchdogs and no scrutiny. I think we are a marshmallow fascist state where fundamental individual rights (which are rights that do not just protect the individual but also protect the whole of society because they limit the power of government) are very easily dispensed with.

As I said, it is clear that no-one, with the possible exception of myself and maybe one or two others, believes in this stuff any more, so I think just let it rip and be quite open with the people of South Australia about what you are on about. Some sort of amendment bill to completely dispense with the presumption of innocence would be in order—at least it would be honest—and also some sort of bill to have completely closed trials in every case. Why not? We do it for the most important decisions that we can make in our court system; why not do it for the minor ones? That, at least, would be consistent.

Clause passed.

Clause 2 passed.

Clause 3.

The Hon. DAVID WINDERLICH: I move:

Page 4, lines 1 to 5 [clause 3(1), definition of criminal intelligence]—Delete the definition of criminal intelligence

This amendment would delete the definition of criminal intelligence. My opposition to the notion of criminal intelligence I think has been made abundantly clear, so I will not speak about it at length other than to reflect on a remark made by the minister the other day when he talked about criminal intelligence being better than criminal ignorance. In fact, in many ways, they are the same thing because, under criminal intelligence provisions (that is, secret evidence), the accused will be ignorant of the grounds on which they are accused—or may well be ignorant. Their lawyer will be ignorant, the media will be ignorant and the public will be ignorant. The only people who will know what is going on are the authorities who will operate without scrutiny. So my opposition is abundantly clear: criminal intelligence is criminal ignorance in terms of how democracies operate.

The Hon. P. HOLLOWAY: This amendment is the first in a series filed by the Hon. Mr Winderlich that remove the prohibition against disclosing information classified as criminal intelligence that is submitted by the commissioner in the course of an investigation and the making of an application for an unexplained wealth order. The government submits that this amendment should be treated as a test amendment for the series.

This amendment deletes the definition of 'criminal intelligence' from clause 3 of the bill. The definition is crucial to the provisions that prohibit disclosure of criminal intelligence. For this reason, it is opposed. 'Criminal intelligence' is defined in clause 3 of the bill to mean:

...information relating to actual or suspected criminal activity (whether in this state or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety;

For obvious reasons, criminal intelligence cannot be disclosed to the criminals to whom it relates. Criminal intelligence may take the form of information from police informants or undercover officers, from covert surveillance (including electronic surveillance) or from victims of crime and other witnesses. What is important is that the information, whatever its source, satisfies the definition. If it does not, it is not criminal intelligence and is not protected from disclosure.

Criminal intelligence is protected from disclosure by the combined effect of clauses 6 and 12 of the bill. These clauses are by no means unique. Information in the nature of criminal intelligence as it is defined in the bill which is relevant to administrative decisions and determinations or which is tendered as evidence in court proceedings is protected from disclosure under a number of South Australian acts. Examples are: the Liquor Licensing Act, the Serious and Organised Crime (Control) Act and the Security and Investigation Agents Act. Nor is South Australia alone in recognising the need to protect highly sensitive information from disclosure in court proceedings. Section 76(2) of the Western Australian Crime and Corruption Commission Act 2003, for example, protects from disclosure criminal intelligence tendered in review proceedings under that state's anti-fortification provisions.

As members may also be aware, claims of public interest immunity against disclosure of information of the kind that would meet the definition of criminal intelligence have been a feature of our criminal system for some time. Criminal intelligence provisions, including provisions substantially the same as those the Hon. Mr Winderlich's amendment seeks to delete from this bill, have been found to be constitutional by the High Court in K-Generation Pty Ltd, the Liquor Licensing Court 2009, HCA4. These provisions are important. Without them information relevant to the stripping of unexplained wealth from those who have insulated themselves from the operation of the criminal law will not be able to be used as to do so would risk disclosure of the information to the criminals about whom it relates.

I stress again that the only information that will come within the definition is information the disclosure of which could reasonably be expected to prejudice criminal investigations, enable the discovery of a confidential source of information or endanger a person's life or physical safety. The government's position is that information that could prejudice criminal investigations, disclose a confidential source of information or place a person's life or physical safety at risk should not be disclosed to the criminals about whom it relates. For this reason the government opposes this amendment and any other that seeks to remove the protection from disclosure afforded to criminal intelligence.

The Hon. R.D. LAWSON: Liberal members will not support the amendment proposed by the Hon. David Winderlich. We hesitate about the use of criminal intelligence provisions, but our touch stone in relation to them is that ultimately it must be for a court to decide whether the particular information qualifies as criminal intelligence, and an independent judge has that role. Provided there is that judicial supervision, provided the judge has the capacity to say, 'No, the information is not criminal intelligence because it does not satisfy the criteria'—namely, those tendering it cannot satisfy the court that the disclosure could reasonably be expected to prejudice proceedings, enable the discovery of the identity of a confidential source of information or to endanger a person's life or safety—the fact that the decision is in the hands of a court is sufficient.

We accept that the High Court in the K-Generation case, a case emanating from South Australia, supported the constitutionality of the inclusion of such proceedings, which is important to us. We also believe that these are relatively new provisions and there will be occasion in the not too distant future to review their operation. If it transpires that the fears of those who, like the Hon. David Winderlich, feel that it is inappropriate are justified, we are certainly not wedded to maintain for all time exactly the same criminal intelligence regime.

We accept the evidence given by police commissioners that increasingly today criminal investigation relies upon criminal intelligence, much of which is information gained by sources which are themselves either criminal or associated with criminals, from informers and the like. We do not believe that the police are so foolish in their use of criminal intelligence to blindly accept whatever rumour is advanced to them, but ultimately we are satisfied with these provisions on the basis that they are all subject to judicial supervision. We will not support this amendment or the other consequential amendments of the honourable member.

Amendment negatived.

The Hon. R.D. LAWSON: I move:

Page 4, after line 11 [clause 3(1)]—Insert:

DPP means the Director of Public Prosecutions and includes a person acting in the position of Director of Public Prosecutions;

My amendment inserts a definition of the DPP. Perhaps I will treat my next amendment as a test for the proposals we have for the DPP as opposed to the Crown Solicitor.

The Hon. P. HOLLOWAY: I guess there is no point in my moving an identical amendment. I did explain the reason for the government moving these amendments in my comments on clause 1, so I will not repeat them here.

Amendment carried; clause as amended passed.

Clause 4.

The Hon. R.D. LAWSON: In relation to clause 4, a formula is provided for determining what is effective control. Clause 4(1)(c) provides that a formula, which includes a number of beneficiaries, is used. Does the government accept that it is the case that in many discretionary trusts it is not possible to determine in advance the number of possible beneficiaries, given that many discretionary trusts have a wide range of persons who might be eligible as beneficiaries?

The Hon. P. HOLLOWAY: I understand the point the honourable member is making, but the government has taken this definition from the Criminal Assets Confiscation Act. Although much thought has been given to an alternative definition, given the complexity we believe that this is the best definition that could be devised. We accept the point that the honourable member is making, that it is a very complex area. It is very difficult to get a better definition.

Clause passed.

Clause 5 passed.

Clause 6.

The Hon. R.D. LAWSON: I move:

Page 5, line 35 [clause 6(1)]—Delete: 'The Attorney-General'

This amendment excludes the Attorney-General from those persons to whom criminal intelligence may be disclosed. I acknowledge that the minister, in his comments on clause 1, indicated reasons why the government believes that the Attorney-General should be a recipient. He mentioned the fact that the Attorney is the responsible minister, that the Attorney is required to undertake a review of the operations of the act.

We note that under the Serious and Organised Crime (Control) Act there is a provision in section 29(2) which enables the Attorney to be informed of criminal intelligence. Section 13 of that act does not permit the Attorney-General to disclose to any other person information which the commissioner has classified as criminal intelligence except to the inspector appointed under part 6 of that act. Likewise, section 21 of that act enables the Attorney-General to receive criminal intelligence used in relation to the making of control orders.

Our concern in moving the amendment is that there was nothing on the record to indicate why the Attorney ought be the recipient of criminal intelligence. We are, however, satisfied by the explanation that has been put on the record, principally because the minister is responsible for the administration of the act and that it is important ultimately that the community, through an elected representative, be in a position to hold a statutory office holder such as the commissioner of police accountable for the administration of the law. Having said that, I am really indicating that I am not inviting the committee to support the amendment that has been proposed and certainly will not be dividing on the matter.

The Hon. P. HOLLOWAY: I thank the Hon. Mr Lawson for his comments.

The Hon. DAVID WINDERLICH: I will briefly say in relation to criminal intelligence that I note the two defences of the use of criminal intelligence, one by the minister where he cites other acts in which provisions of criminal intelligence or similar criminal intelligence exist. He cited the Serious and Organised Crime (Control) Act, the Security and Investigation Agents Act and the Liquor Licensing Act.

I believe that the only one of those that precedes this government is the Liquor Licensing Act, so when we look for a reference or justification for criminal intelligence we say, 'Well, it is there in law.' Who put it there? Gosh; we did. Who can vouch for this as a legislative tool and established principle? We can; we did it. I do not accept that argument. My whole point is that this government has led us down an increasingly authoritarian path and is extending these provisions into more and more areas and, shortly to come, into small, second-hand goods shops and market stalls.

The Hon. Robert Lawson's defence of criminal intelligence was basically premised on trust in the police. I do not want to criticise the police any more than any other institution in society, but I do criticise other institutions in society. I believe all institutions are fallible, and we have a strange perspective when somehow we accept that power will be abused in relation to politicians (of course we accept that); we accept that developers will attempt to influence and bribe officials (no problem; we accept that); we accept that local councils will be corrupted and influenced; and we accept that doctors could abuse their important role in relation to voluntary euthanasia.

Somehow, everyone can abuse their powers and therefore must be scrutinised except for the police. It does not make sense. They have a very hard job to do in a very adversarial situation; I would not want to do it. They perform an absolutely vital role, but they are not above criticism, and they are certainly not to be trusted any more than any other powerful institution. All power corrupts; all power corrupts the more when conducted in secret. That is the premise of the argument against criminal intelligence, which is not to say that there is no role for issues such as public interest immunity.

If we look at the context of this whole bill, you do not have to prove that the proceeds of wealth were obtained illegally; you just have to suspect it. A whole lot of things then follow. These decisions are not reviewable. There are some very explicit descriptions in the report, which I think are obviously put there in support of this measure but, to my mind, they actually condemn it.

There will be no criminal threshold of proof for the making of the application for the full unexplained wealth order. I think that in itself very clearly explains it all. There is no obligation on the Crown to prove, or even allege, that the person or body corporate is engaged in any sort of criminal activity. So, in the context of the whole bill, you do not have to prove your case and then you can put evidence in secret. I have difficulties with criminal intelligence in almost all contexts anyway but, in the context of this bill—so much of which is beyond challenge—I think it is even worse.

I have one final point. I believe the minister also said that information that could prejudice an investigation should not be disclosed to the criminals who are being investigated. As I said, we have just about abolished the presumption of innocence. The minister demonstrated the presumption of guilt. It is the default presumption, in many ways, in many pieces of the government's legislation. As I said, go ahead; standardise it. You are sort of doing it by stealth anyway, so do it openly. I think I have made my point very clear. My opposition to criminal intelligence, particularly in the context of this bill, is very clear.

The Hon. P. HOLLOWAY: I would have thought that we had the vote on the criminal intelligence issue earlier. In essence, I would have thought that the Hon. Mr Winderlich's motion is consequential. I move:

Page 5, line 34 [clause 6(1)]—After 'to the' insert:

DPP or the

I addressed this matter in my comments on clause 1. The effect of the amendments to the bill that were proposed originally by the Hon. Mr Lawson was to substitute the DPP for the Crown Solicitor throughout. Under his series of amendments, the Crown Solicitor has no role at all. The effect of the amendments to the bill proposed by the government is that the role is split between the Crown Solicitor and the DPP. The DPP acts as the independent gatekeeper and the Crown Solicitor does the litigating. That is the difference in approach. This is the first amendment that is a test of that approach.

The Hon. R.D. LAWSON: We are grateful to the government for altering the model originally adopted. The series of amendments on this subject standing in my name were designed to substitute the DPP with the Crown Solicitor. The government's proposal is not to make that substitution but to interpose the DPP as the gatekeeper—as the minister describes the DPP—in whom is reposed the responsibility for initiating unexplained wealth orders.

The key clause is an amendment to clause 9 foreshadowed by the minister which, under the government's model, will provide that, if the DPP reasonably suspects that a person has unexplained wealth, the DPP authorises the Crown Solicitor to make the application. Whilst that is not our model, it is a considerable improvement on the government's original proposal, and the opposition will accept the government's model in relation to this. On the assumption that the minister will be moving a series of amendments to achieve that objective, I will not move the amendment standing in my name on this topic.

The Hon. P. HOLLOWAY: I thank the opposition for its indication of that.

Amendment carried; clause as amended passed.

Clause 7.

The Hon. R.D. LAWSON: I move:

Page 6, lines 14 and 15—Delete 'exercises an independent discretion in relation to that power or function and does' and substitute:

must exercise an independent discretion in relation to that power or function and must

The bill as it is currently drafted contains in clause 7 a pronouncement, which provides:

For the avoidance of doubt, where this act specifies that a power or function is to be exercised by the Crown Solicitor, the Crown Solicitor exercises an independent discretion in relation to that power or function and does not act on the instructions of any other person...

We believe that a more satisfactory formulation of that concept is one that actually requires the Crown Solicitor to exercise an independent judgment, not simply to proclaim by statute that he is exercising an independent discretion. We also believe that it is inappropriate to say that he 'does not act on the instructions of any other person or body' because that is a statutory pronouncement that may or may not be true. It is possible that the Solicitor-General, who is an officer answerable to the Attorney-General, may be given a direction by the Attorney-General and, in a certain instance, is acting on the instruction of the Attorney-General. We do not favour pronouncements of this kind. We believe it is better statutory practice to require certain action to be taken rather than announce to the world that certain action has been taken.

The Hon. P. HOLLOWAY: I did refer to this matter in my comments on clause 1. The Hon. Mr Lawson said that he would prefer wording to the effect that the Crown Solicitor 'shall not act on instructions'. As I indicated earlier, the government has consulted parliamentary counsel, as this is a matter of drafting. I am advised that parliamentary counsel is of the opinion that the words drafted mean what the honourable member desires and that, in parliamentary counsel's opinion, the drafting should stay as it is to achieve that result. That is the advice the government has received.

The Hon. R.D. LAWSON: That is on the record, and I do not propose to divide on this issue.

Amendment negatived.

The Hon. P. HOLLOWAY: I move:

Page 6, after line 16—Insert:

(2) In proceedings under this act the Crown Solicitor acts as a model litigant for, and on behalf of, the state.

This amendment is an attempt by the government to address the concerns raised by the opposition in relation to the independence of the Crown Solicitor.

The Hon. R.D. LAWSON: Could the minister indicate whether this concept of the model litigant appears in other legislation, and what meaning does the government ascribe to the term 'model litigant'?

The Hon. P. HOLLOWAY: My advisers are not aware of this term being elsewhere in legislation, so in that respect it is novel. However, I am advised that it is commonly accepted that the Crown Solicitor should act as a model litigant; and it is, as I said earlier, an attempt by the government to address the concerns that were raised in the debate earlier.

The Hon. R.D. LAWSON: We support the amendment. We certainly support the concept that the Crown Solicitor ought act as a model litigant, although there are a number in the community who would question that fact. I think there is a bill before the council, perhaps moved by the Hon. Rob Brokenshire, to require the Crown Solicitor to act as a model litigant in relation to the costs, I think, in the Trevorrow matter.

We think it is laudable that the Crown Solicitor should act as a model litigant, and any statutory provision that encourages the Crown Solicitor to do so is to be supported, notwithstanding the vagueness of the concept and the fact that this provision is again couched in terms of pronouncement rather than in terms of requirement. We appreciate the sentiment behind the amendment and will support it.

Amendment carried; clause passed.

Clause 8 passed.

Clause 9.

The Hon. P. HOLLOWAY: I move:

Page 6, lines 33 to 35 [clause 9(1)]—Delete subclause (1) and substitute:

(1) If the DPP reasonably suspects that a person has wealth that has not been lawfully acquired, the DPP may authorise the Crown Solicitor to make an application to the District Court under this section.

The Hon. P. HOLLOWAY: This amendment is consequential on the earlier amendment we moved in relation to the role of the Director of Public Prosecutions.

The Hon. R.D. LAWSON: I indicate that we will support the amendment.

Amendment carried; clause as amended passed.

Clauses 10 and 11 passed.

Clause 12.

The Hon. DAVID WINDERLICH: I move:

Page 8, lines 32 to 37 [clause 12(1 (a)]—Delete paragraph (a) and substitute:

(a) the powers and functions are exercised for the purpose of investigating, or restraining, wealth of a person who has been convicted of a serious offence or declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 in relation to a charge of a serious offence; or

This amendment is a test case for proposed amendments Nos 4, 5, 6, 7, and 8, which I will not move if this amendment fails. This amendment would effectively delete paragraph (a), the effect of which would be to strike out a provision relating to control orders.

Again, in a number of other contexts I have spoken against control orders—and will continue to do so. In the context of this bill, we have a situation where evidence is not required to prove that proceeds of wealth were obtained illegally. The onus of proof is reversed. The trigger for these kinds of provisions—and one of the ostensible safeguards—is that they can be used only against those convicted of or found liable to supervision for a serious offence, those subject to a control order under the Serious and Organised Crime (Control) Act, or those who the Crown Solicitor has reasonable grounds to suspect have engaged in serious criminal activity or regularly associated with persons who engage or have engaged in serious criminal activity.

Following the recent court case, there is now a constitutional question in relation to control orders—and I imagine that will be clarified—but beyond that my concern is that people are subject to control orders in two broad ways. First, they are a member of a declared organisation and, therefore, by virtue of their membership of that organisation, they can be subject to a control order. That can apply even if that individual has not had any convictions recorded against them, even if that individual has not been recorded as having broken the law.

In fact, even the Finks Motorcycle Club—that does have a high proportion of people with criminal convictions, as indicated in material provided by the Attorney-General to support his declaration of the Finks Motorcycle Club—had four members without a criminal conviction. That is at the extreme end. Other organisations that could be declared could have higher proportions of people without a criminal conviction. One becomes subject to a control order not on the basis of what one has done but, rather, on the basis of one's membership of a group. That is dangerous territory and I oppose it on those grounds. The other broad way in which someone can be subject to a control order is on the basis of past criminal convictions, which could go back decades.

I have two broad objections. One is on the broad ground of freedom and rights, both as a protection and a right of the individual and as a restraint on the power of government and the authorities. My other objection, which has not been aired much in this debate, is about the equity impacts of control orders. Once we start to look at the second broad ground on which someone can be subjected to a control order, that is, their past criminal convictions, we then find that there are certain suburbs and population groups in Adelaide where you will have a much higher proportion of people who at some time in the past have had a brush with the law. This does not happen in the nice, middle-class surrounds that most of us come from but—

An honourable member interjecting:

The Hon. DAVID WINDERLICH: Most of us.

The Hon. P. Holloway: There is a lot of unexplained wealth out there, though.

The Hon. DAVID WINDERLICH: Yes, and quite a lot of it is in the Labor Party. I know something of these issues because I have been a youth worker in a number of communities. I also have an indigenous adopted brother, so I do know something about this. There are places in Adelaide and in South Australia where, if you sit around the table, it is reasonably likely that one member of the family or the extended family is not there because they are in gaol; or they have come back from gaol; or at some time in the past they may have served time in gaol on some sentence. That person may, over time, have rehabilitated themselves and worked their way back into the community. There are many cases (I will not name names) where some people make the headlines from time to time and then assume a leadership position in their community.

We do have to be careful given the social and economic roots of much crime—and I want to be clear that that is not to say we do not have an absolute priority on making people safe when a crime is committed and that individuals do not have a responsibility. However, statistics show very clearly the social and economic roots of this. When you start to apply issues such as control orders on those grounds, you have equity effects. In fact, there is a point at which an indiscriminate law and order approach actually declares war on the poor. That is my belief. There is a time for tough penalties and tough approaches but, if you adopt an indiscriminate one, you are declaring war on the poor because they are the ones most likely to fall foul of the law.

The Hon. P. Holloway: War on the poor, when there is unexplained wealth?

The Hon. DAVID WINDERLICH: Well, these are some of the grounds for control orders. The control orders are partly based on past criminal convictions and, once you are subject to a control order, you can then be subjected to unexplained wealth provisions which, as I have said, do not require evidence to be implemented. So I think these are entirely objectionable in general and they are objectionable in the context of a bill the fundamental premise of which is to get around the need to provide evidence for taking action against a person. So I object fundamentally.

I will not speak on the other amendments because, as I said, this is a test case, and I will not divide. I could do that, but I do not want to waste the chamber's time. I note for the record that, as far as I know, I am probably the only person in this chamber who will actively contest these issues and probably one of only two (in conjunction with the Greens) who will vote against them. If anyone wants to correct that, feel free.

The Hon. P. HOLLOWAY: The effect of this amendment, which is also one of a series, would confine the operation of this bill to those who have been charged with and convicted of a serious offence or found not criminally responsible by reason of mental impairment. If passed, this amendment would have the effect of gutting the bill. It would mean that the government might as well abandon the bill. It is therefore opposed with vigour.

Let me be plain about this. The government is, through this bill, aiming for those who organise, finance and direct serious criminal activity and threatening gang activity but so insulate themselves from the direct commission of the offences that they cannot be brought to book. That has been happening ever since Al Capone, and probably a lot longer than that. I believe for many years there have been crime bosses who have insulated themselves. There is Fagan and plenty of those people who get others to commit the offences. The government is going after them and, for those who do insulate themselves, it does not apologise for it. We are not alone in this. Western Australia and the Northern Territory have analogous laws and the commonwealth has just introduced a bill into the commonwealth parliament to do the same. There is a national consensus on the path, and the government will not be deflected.

The Hon. R.D. LAWSON: We will not support the amendment. We believe that the evidence clearly establishes that those who obtain wealth by criminal means seek to insulate themselves from forfeiture and other legislation by placing such assets in the hands of people who have not been the subject of criminal proceedings and who have not had any convictions. If the legislation were to be restricted only to those who had been convicted of serious criminal offences, but not extended in the manner suggested, it would be weak legislation indeed. The loopholes would be so large that trucks could be driven through them.

It is important that this legislation does not give cart blanche to the authorities in this regard. There must have been either a serious conviction or the person must have been the subject of a control order to activate these provisions.

Amendment negatived.

The Hon. P. HOLLOWAY: I move:

Page 8, line 38 [clause 12(1(b)]—Delete 'Crown Solicitor' and substitute 'DPP'

Page 9—

Line 1 [clause 12(2)]—Delete 'Crown Solicitor' and substitute 'DPP'

Line 3 [clause 12(2)]—Delete 'Crown Solicitor' and substitute 'DPP'

Line 9 [clause 12(2)(c)]—Delete 'Crown Solicitor' and substitute 'DPP'

Line 15 [clause 12(3)]—Delete 'Crown Solicitor' and substitute 'DPP'

These amendments are consequential on earlier amendments.

The Hon. R.D. LAWSON: I support the minister's amendments and will not be moving the amendments standing in my name on this clause.

Amendments carried.

The Hon. P. HOLLOWAY: I move:

Page 9, line 17 [clause 12(3)]—After 'Commissioner' insert 'of Police'.

This amendment makes clear that when 'commissioner' appears it refers to the Commissioner of Police.

Amendment carried.

The Hon. P. HOLLOWAY: I move:

Page 9, lines 18 to 28 [clause 12(4) to (6)]—Delete subclauses (4) to (6) inclusive.

This amendment essentially is consequential. The authorisations by the DPP are now included as a new clause in my amendment No.13, so it is consequential on earlier amendments.

Amendment carried; clause as amended passed.

Clauses 13 to 33 passed.

Clause 34.

The Hon. P. HOLLOWAY: I move:

Page 19, line 31 [clause 34(2)]—Delete subclauses (4) to (6) inclusive.

The amendment is consequential to the earlier amendments to incorporate the role of the Director of Public Prosecutions.

Amendment carried; clause as amended passed.

Clauses 35 and 36 passed.

New clause 36A.

The Hon. P. HOLLOWAY: I move:

Page 20, after line 22—Insert:

36A—Authorisations by DPP

(1) An authorisation given by the DPP for the purpose of section 9 or section 12 lapses three years after the date on which it was given.

(2) In any proceedings—

(a) a certificate of the DPP certifying that the exercise of powers or functions specified in the certificate has been authorised in accordance with section 9 or section 12 is conclusive evidence of the matters so certified; and

(b) an apparently genuine document purporting to be a certificate of the DPP under this subsection is to be accepted in any proceedings as such a certificate in the absence of proof to the contrary.

(3) The DPP may not delegate any powers or functions of the DPP under section 9 or section 12.

This amendment is consequential. It is this clause which again relates to the role of the Director of Public Prosecutions.

New clause inserted.

Clause 37 passed.

Clause 38.

The Hon. P. HOLLOWAY: I move:

Page 20, line 34 [clause 38(a)]—Delete: 'Solicitor-General' and substitute:

DPP, the Crown Solicitor

This is consequential.

The Hon. R.D. LAWSON: That is not, strictly speaking, consequential. The inclusion of the Solicitor-General was acknowledged by the minister to be a drafting error initially. In my second reading contribution I queried that. I am grateful to the minister for now moving the exclusion of the Solicitor-General.

The Hon. P. HOLLOWAY: Yes, I acknowledge that Mr Lawson picked up this drafting error during the early stage of the debate, and I thank him for doing so. This corrects it.

Amendment carried; clause as amended passed.

Clause 39.

The Hon. DAVID WINDERLICH: I move:

Page 21, lines 1 to 11—Delete clause 39

The amendment relates to removing protection from proceedings or essentially allowing judicial review of decisions, which are currently prohibited under this bill. The amendment will delete clause 39 entirely, because clause 39 completely removes the possibility of judicial review for a declaration injunction order, or other remedy, under this bill.

There are three objectionable levels of decision-making in this bill. The first is that you do not need evidence that wealth has been obtained illegally; you just need to suspect it. Then we have secret evidence, criminal intelligence, and, finally, there is no means of redress, no way of getting judicial review of decisions taken. Decisions taken without evidence on the basis of information that can be considered in secret cannot be reviewed. It is hard to think of how something could offend so many principles of our justice system and our judicial history in one blow.

I note that the Hon. Robert Lawson QC spoke of loopholes in this legislation. I am sure he will respond to this. I think that he should respond, because he is a QC. When we speak of loopholes in this legislation—and he knows far more about the law than I do—would that be the loophole under which no evidence is required, or would that be the loophole under which the presumption of innocence is reversed? Would that be the loophole under which things can be considered in secret? I do not pretend to be any sort of expert on the law, but I did not think these used to be considered loopholes; I thought they used to be considered basic tenets of our legal system. I look forward to his learned explanation of why that is not so.

The Hon. P. HOLLOWAY: The amendment moved by the Hon. Mr Winderlich seeks to strike out the privative clause. It is opposed. The privative clause is common to the serious and organised crime package for the simple reason that, if defendants could litigate judicial review on every aspect of the decision to take proceedings against them to the High Court, as they have clearly shown they are prepared to do, then the legislation will grind to a halt for years and be unworkable.

There is more. The role of the Director of Public Prosecutions in this legislation is as a gatekeeper. The government has put protections for defendants into the bill to ensure that there is independent scrutiny of the decision to take steps which may be very intrusive against defendants. These are protections for defendants. If these could be bogged down in the courts for years, the government would not have the protections at all. There is an irony here. The workability of the very protections for the integrity of the system proposed would be undermined by the honourable member's amendments.

One further thing: the discretion that the honourable member seeks to have reviewed is that exercised by the Crown Solicitor and the Director of Public Prosecutions. Since when have courts reviewed the decision of any litigant to bring civil proceedings? About never, I would say. Analogously, since when have courts reviewed the decision of the DPP to bring civil or criminal proceedings? About never, I would say. The idea is preposterous.

The Hon. R.D. LAWSON: We will not support the Hon. Mr Winderlich's amendment. From the opposition's point of view, the most important protection in this legislation is the fact that an appeal to the Supreme Court exists for a person who is subject to an unexplained wealth declaration, and the appropriate time for determining the rights of the person is at the time the decision is made, and an appeal is brought against that decision if it is deemed to be unsatisfactory.

Ordinarily we would prefer rights to judicial review which generally exist to remain. However, in relation to legislation of this kind, it is clear that, if judicial review is allowed at a preliminary stage, proceedings will never get under way or will become bogged down. As the minister has said, there are really no rights to judicial review in relation to the initiation of either civil or criminal proceedings by ordinary litigants; why should the Crown be subjected to similar limitations? The real protection is the right of appeal and the right to be heard when the order is made.

The Hon. P. HOLLOWAY: I move:

Page 21—

Line 5 [clause 39(1)(a)]—Delete 'Crown Solicitor' and substitute:

DPP or the Crown Solicitor

Line 6 [clause 39(1)(b)]—Delete 'Crown Solicitor' and substitute:

DPP or the Crown Solicitor

Line 7 [clause 39(1)(b)]—Delete 'Crown Solicitor' and substitute:

DPP or the Crown Solicitor

Lines 10 and 11 [clause 39(2)]—Delete 'Crown Solicitor' and substitute:

DPP or the Crown Solicitor

These are all consequential to the earlier amendments we have moved, and they all relate to the role of the Director of Public Prosecutions.

The Hon. R.D. LAWSON: I make no comment in relation to the first three. The fourth provides that neither the DPP nor the Crown Solicitor is required to provide procedural fairness in exercising powers or performing functions under this act. At first glance that might appear to be a draconian provision. The new provision is in identical terms to that which appeared in the bill originally proposed, except that both the DPP and the Crown Solicitor are now included.

The obligation to provide procedural fairness in relation to administrative proceedings is a common law provision. When I was a law student, it used to be called the rules of natural justice, which required allegations to be provided to persons who might be affected by decisions and, more importantly, provided that, before decisions were made, those persons were accorded the opportunity to make submissions or to protest against the proposed actions.

It is not appropriate in ordinary criminal investigations to require that procedural fairness be accorded; in other words, all allegations do not have to first be laid before the person and they do not have to be given the right to comment before an arrest is made, for example, before charges are laid or before proceedings are taken. Their opportunity to contest the matters will occur in the ordinary course of the criminal proceedings rather than at a preliminary stage. I do not regard this as a loophole. We will be supporting the minister's fourth amendment on this clause. I indicate that the amendments I have to clause 39 will not be moved.

Hon. David Winderlich's amendment negatived; Hon. P. Holloway's amendments carried; clause as amended passed.

Clauses 40 to 44 passed.

Clause 45.

The Hon. P. HOLLOWAY: I move:

Page 22, line 15 [clause 45(2)(b)]—After 'Attorney-General,' insert:

The DPP,

Again, this amendment is consequential and relates to the role of the DPP.

Amendment carried; clause as amended passed.

Schedule and title passed.

Third Reading

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (17:38): I move:

That this bill be now read a third time.

The Hon. DAVID WINDERLICH (17:39): In the debate on this bill, I am reminded of two things. I am reminded of when I began work in cabinet office in 1993 after the Labor government had been thrown out and the new Dean Brown government elected. What struck me was that, virtually overnight, with the change of regime, the language of social justice disappeared. All of a sudden, without anyone even having to issue a circular, everyone knew that it was verboten, and no-one mentioned social justice any more.

The other thing it reminds me of is the Mad magazine, the shadow nose, where you see a picture of a character who is shaking someone's hand but the forward bubble shows that they are actually stabbing them in the back. I say that because I think some of the language used today was very revealing of the cultural shift that is now going on in our minds. We have now become accustomed to dispensing with what we once thought fundamental, and we have done this on more and more tenuous grounds, I argue. The two revealing—

An honourable member interjecting:

The Hon. DAVID WINDERLICH: Well, I would like to see the evidence for your approach. There are many criminologists who would say that you are, in fact, reacting to crime, not preventing it in many ways, but we can have that argument another time. The minister's description of justification of criminal intelligence as 'Criminals should not be given access to information that might prejudice the investigation' was in the context of a bill for which no evidence is required and evidence is heard in secret and there is no review. So, what was already operating in the minister's mind was the presumption of guilt, not the presumption of innocence. I was struck by the Hon. Robert Lawson's description of what I took to be fundamental tenets of our system as loopholes.

In response to my last amendment to the removal of the prohibitive clause ensuring the ability to have a judicial review, the minister asked, 'Since when do we have this sort of process in relation to civil decisions?' He is probably right, but my whole point is: since when (clearly, as of now) do we have one package of legislation under which evidence was not required to take action to confiscate wealth? Evidence was not required for that because it was obtained illegally; the presumption is reversed; there is criminal intelligence, or secret evidence; and there is no provision for review.

I think this is breaking new ground, and I do not think it is positive ground. As I have said on a number of occasions, I do not think the case has been made. Of course, I recognise that there is a problem with organised crime; of course, I recognise community safety is important. However, there are two fundamental qualifications. One is that we need evidence when we make major decisions of this kind, and the other is that we need to think through what price we are willing to pay. If we want to be absolutely and completely safe, we could have—

The PRESIDENT: I remind the honourable member that the time for debating the bill has concluded.

The Hon. DAVID WINDERLICH: Okay; I will conclude very shortly. If we want to be completely safe, we could be frisked every five minutes; we could have security cameras in every nook and cranny; and we could have police with machineguns in every corner. Would that make us safe? I do not know. What sort of life would we live? I think it is Benjamin Franklin who is often attributed the remark, 'Those who would dispense with their freedom to protect their security deserve neither.' I think that is increasingly the situation in which we find ourselves.

Third Reading

Bill read a third time and passed.

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