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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-09-13 Daily Xml
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CRIMINAL ASSETS CONFISCATION (PRESCRIBED DRUG OFFENDERS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 28 July 2011.)

The Hon. K.L. VINCENT (17:18): This is yet another bill from a government that wants to be seen as being tough on crime, but, unfortunately for the government, it would seem that coming up with a workable solution to crime is the only thing that is proving to be really tough. My concern about this bill is great, both in gravity and quantity, and it is worth noting that, as usual, I am not alone in being alarmed and angered by this government's heavy-handed, reactive, rather than proactive, approach to crime, particularly drug-related offences.

I have received correspondence from the Law Society which outlines its objection to this bill for various reasons. I understand that the Liberal Party will also be opposing this bill on similar grounds.

My concerns with this bill are as follows. Firstly, and perhaps most importantly of all, the punishment proposed in this bill—that is, taking away an offender's assets, such as property or cars—does not relate at all to the offence committed. I believe that there is a fine line between protecting and educating people and crushing them with overprotection, and I believe that there should only be room in this chamber and in this parliament for government to introduce consequences that relate as directly as possible to offences committed.

Our government is supposed to help the people of this state to grow, develop, progress and flourish. This government is not here to flex its muscles and do as it pleases with the power it has been given by the people it is supposed to serve. This measure is solely punitive and therefore is irresponsible and intolerable. As the Law Society itself suggests, if the government believes that the current punishments in place for this kind of crime are not sufficient, it should look at measures such as lengthening the gaol sentences pertaining to these offences instead of coming in in a blind rage striking every which way like a school bully in a sandpit.

The measures proposed under this bill are also, in my opinion, too highly variable. It is a tenet of the law that everyone should be treated equally, and the fact that some people could lose more assets than others as a consequence of the same crime severely undermines this fundamental principle. If our government wishes to uphold the basic principle that all people are deserving of the same rights and enjoyment in life, then logically it must be prepared to apply the necessary negative aspects of the law equally too.

Of course, this bill is also heavy-handed in the sense that it is not only those who have committed an offence under it who would be punished. The loss of a home, property or car could have serious impact on the offender's immediate family for instance. Given the nature of the offence, family members, particularly children, may not even be aware that the offender was involved in drugs.

I can see the government coming back on this point and saying, 'Well, what are you saying, that we can only dish out punishments that don't affect anyone's life in any way?' Of course this is not what I am saying. Having a family member in gaol is obviously going to have very severe and tragic consequences for more than just the person serving time. At least, though, having a loved one in gaol does not mean families going without a car to get to work or school or, worse still, being left without a home to live in while dealing with the emotional anguish that is bound to be caused by this kind of situation.

I am in no way implying that lengthening the gaol term for offences committed under this act would be easy on individuals and families, but at least this form of punishment results in the least possible harm to those who have not actually done anything wrong. I reiterate my belief that punishments for crime should relate as strictly as possible to the offence itself and have minimal effect on those who have not committed the offence.

The law has two duties when it comes to offences such as this: punish the guilty responsibly and protect the innocent entirely. I believe that this bill subverts both of those duties, but, of course, the issues with the bill do not stop there. We also have a problem in that there is currently no right to appeal once a court has decided to confiscate an offender's assets under legislation such as this. This not only compounds the effect that the confiscation of assets could have on an offender and their family but it also compounds the affront to law that this bill represents.

I would go on to suggest that this bill also has the potential to perpetuate the cycle of poverty and severely impede an offender's rehabilitation. How is a person supposed to get away from the poverty and desperation a lifestyle involving drugs can often lead to if they do not have so much as a roof over their head? We must ask further: how does the government expect a child of such a person to have the best opportunity to benefit from life if they are disadvantaged through this confiscation system? It is just so terribly ill-conceived and offensive to the notion of social equity.

I am in no way condoning 'the drug lifestyle' but I do believe in the right to rehabilitation and I fear for the effect that not having access to the most basic tools for rehabilitation may have on a recovering person's life. I fear that desperation may then lead them back into crime and start the cycle all over again, and while I do not condone this lifestyle, I do condone human rights for everyone and this bill is treating drug offenders like they are inhuman and do not have any rights at all, and this is a position I simply cannot support.

In short, this bill does not punish responsibly. It does not protect innocent people sufficiently, and for this reason it does not have my support. However, I am willing to consider some of the technical amendments to this bill which are being introduced by the Hon. Mr Stephen Wade, and for that reason I will allow it to go into committee.

The Hon. A. BRESSINGTON (17:25): I rise to indicate that I also will not be supporting the government's Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill 2011. My main concern, as it is for the Law Society and others, is the lack of nexus between the offence committed and the assets received. Unlike the existing tools available to the state to chase proceeds of crime, this bill requires no demonstration that the property to be confiscated was or even was most likely purchased with illicit drugs or illicit gains, it just assumes this to be the case. Coupled with a lack of appeal rights or judicial discretion, the lack of nexus crosses the line, in my opinion, of what should be available to the state.

Further, I consider the existing Criminal Assets Confiscation Act, coupled with the Serious and Organised Crime (Unexplained Wealth) Act, which I support, to be sufficient to target the illicit proceeds of crime, and in particular proceeds from illicit drugs. No attempt was made to suggest otherwise by the minister when introducing the bill, and while the briefing provided by the Attorney-General, for which I thank him, was some time ago, it is my recollection that no attempt was made to justify the necessity then, either. Rather, it was suggested that this bill would make it easier: an insufficient excuse, given how far it goes.

I also hold serious concerns, as do others, about the potential for innocent parties, particularly offenders' spouses and children, to have hardship forced upon them by the actions of another. It is certainly true that in some cases offenders do not involve or even inform their partners of their offending and yet these law-abiding citizens face severe punishment and hardship through the consequences of their partner's actions.

While I am sure that the government would have us believe that the bill is intended and will only capture the few Mr Bigs of the drug world, a term I have heard often used and rarely seen an outcome to, the reality is that our courts are filled with citizens facing charges for involvement in the drug trade. Many are facing charges that fit in the commercial bracket, meaning that once this bill is enacted they will face automatic bankruptcy. We should be under no illusion that only a handful will be affected. Nor should we be under the delusion that these offenders are facing lengthy gaol terms, as the Mr Bigs title suggests.

For some time, my office has kept abreast of actual sentences imposed for various offences, from paedophilia through to cultivation, manufacture and sale of illicit drugs, via the sentencing remarks on the courtssa.gov.au website. On the latter, it is hard not to conclude that suspended sentences are the norm.

Looking at the four distinct commercial drug offences currently on the site, three resulted in suspended sentences, with the offenders entering into good behaviour bonds of varying lengths. On reading the sentencing remarks, I would suggest that none fall into the category of the Mr Bigs.

In the fourth case, four offenders were involved in the sophisticated large commercial cultivation of cannabis and were discovered with some 259 plants and over 50 kilograms of cannabis. Each offender pleaded guilty, however, one attracted additional charges for a firearm also discovered on the site, and hence received a longer term of imprisonment. Two others received 10 months non-parole and the fourth a suspended sentence and good behaviour bond of two years.

The point to be made is that these offenders are at the highest end of the scale and yet most walk free from court with a good behaviour bond. This, to me, is where we, as a parliament, should be focusing our attention if we truly desire to punish criminals and deter would-be offenders. I ask: where is the deterrent when one can expect to only receive a suspended sentence?

However, instead of seeking to ensure that offenders receive terms of imprisonment proportionate to the seriousness of their offending, or even larger fines, as many of the offences provide for, the government, instead, is chasing assets that may very well not be linked to the proceeds of crime.

The comparison between a court imposed penalty—be it imprisonment or a fine—that is a direct consequence of the offending and what the government proposes in this bill highlights, at least to my mind, the lack of nexus that I spoke of earlier. While the government does not seek to go as far as its Western Australian counterparts, where those convicted lose everything including the family home, it is my fear that the known excesses of the Western Australian scheme—which, again, was sold as targeting the Mr Bigs—will be experienced here.

An example is the case of Mr David Davies (aged 81) and Mrs Florence Davies (aged 77) who are now renting the home they owned for 40 years from the government. Allegedly, unbeknownst to them, their son was storing a commercial quantity of cannabis in the ceiling cavity of their home. The son pleaded guilty to drug trafficking charges and is currently serving, I believe, a sentence in prison. Mr and Mrs Davies were also convicted of drug trafficking, I understand, for aiding and abetting their son's offending as it was not believed they were not aware of the cannabis in the ceiling. Unlike their son, they received a 16-month suspended sentence for their involvement.

Additionally, as a result of being declared a drug trafficker, all of their assets were automatically confiscated and transferred to the state, including the family home which Mr Davies had built himself. The Davies were by no means wealthy and, given their meagre assets, could hardly be said to be living a lavish lifestyle on the proceeds of crime, yet they were ensnared in the net intended for the Mr Bigs. Due to public pressure, I understand the property is now being rented back to Mr and Mrs Davies at peppercorn rent for presumably as long as they intend to live there.

Do we really wish to see such an example here? It is possible to conjure a thousand scenarios in which one mistake, one bad debt to the wrong person—or indeed one selfish and stupid progeny—could see a person bankrupted by the state. While I do not seek to excuse any involvement in the illicit drug trade—and, of course, I seek to limit the availability of illicit drugs—I believe we can do so without crossing the line, which this bill well and truly does.

Despite not supporting the bill, I will be moving an amendment that seeks to limit the bill's scope to those who it can be reasonably presumed have made sustained and significant income from the production or sale of illicit drugs. It does so by restricting the invocation of the automatic confiscation to those who are convicted on a third occasion of a serious drug offence rather than a single serious drug offence or three prescribed drug offences as the bill currently provides.

As I have stated, I believe existing legislation to be sufficient but, if the bill is to proceed, then there should be little doubt that property seized is the proceeds of criminal activity. Short of inserting a test that links the assets to the crime, similar to that which already exists in the Criminal Assets Confiscation Act 2005 (and hence is pointless doing so), by limiting the bill to offenders who have been convicted on three separate occasions of a commercial drug offence, my amendment ensures that it would be reasonable to assume that in most (if not all) cases the offender is deriving a sustained income from illicit drugs.

I also believe my amendment to better reflect the election policy upon which this bill is based which stated that the bill would 'attack repeat drug offenders' and 'targets high level and major drug trafficking offenders'. My reading of the policy sound bite sentences suggests that both quotes are discussing the same category of offender. Accordingly, by restricting the bill to repeat commercial offenders my amendment gives effect to this commitment.

I would like to say that over my years in drug treatment and rehabilitation I came across many instances of young people who had been conned, while they were using drugs, into growing a crop hydroponically in their shed to pay off a debt. It was meant to be a one-off deal to pay off their debt and walk away from it. All of those people that I speak of—and I would say there would be 18, from memory—went on to become drug-free and to this day, five to seven years later, they remain drug-free, disconnected from the drug culture, and have found themselves jobs, gone into education, have reconnected with their families and have basically got on with their lives.

If this bill was in place and it applied to them, they would have had a struggle to get through their recovery and to build a life for themselves, all because of one stupid mistake, one stupid decision, to try to clear up a debt or overcome an apparently insurmountable hurdle at that particular stage of their life. I am sure every member in this place can relate to the fact that young people make stupid decisions, but to be punished for it via bankruptcy by the state, which would be almost a life sentence for some of these people, I do not see the need for this to apply to that group of people.

If our job here is about making police work easier, then we are in real trouble, because at the moment we have a government that appears to believe that what is mine is mine and what is yours is mine as well when I feel like it or when I choose. We have had the same proposal about the confiscation and crushing of monkey bikes, even though when people bought those bikes they were not illegal at the time. People will be punished for making judgements prior to what we as legislators pass as law later down the line.

To me this bill is so over the top. We could do so much better and so much more to make a dent in the drug scene than what is being proposed in this bill. That said, my amendment does not address my concerns, particularly about the lack of nexus between the asset seized and the crime committed, hence why, regardless of its passage, I will not support the bill. However, I encourage members inclined to support the bill to consider my amendment so as to avoid South Australians being confronted with their own version of the Davies example.

Debate adjourned on motion of Hon. J.M. Gazzola.

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