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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-09-15 Daily Xml
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CRIMINAL ASSETS CONFISCATION (PRESCRIBED DRUG OFFENDERS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 13 September 2011.)

The Hon. M. PARNELL (17:37): This bill proposes that where a person has been convicted of at least three serious drug offences over 10 years they will forfeit everything they own, regardless of whether that property had anything to do with the crime or the offending. The Greens strongly oppose this legislation. It is draconian, it is diabolical, it is unfair and it infringes many legal principles, not the least of which is that punishment for criminal acts should be appropriate and proportionate.

The Greens are not alone in forming this view. The Law Society has provided all members with a very considered submission that does not mince its words. We are used to seeing submissions from the Law Society that strongly advocate a position in defence of the rule of law, due process and justice. The language is usually mild, but this particular submission from the Law Society does not mince its words. The submission was supplied to all members, so they will be familiar with it, but I am going to read some extracts from it anyway. The Law Society states:

The Bill seeks to deprive offenders of their assets where there is no connection between the commission of the offence and the receipt of any income or benefit therefrom. Indeed, the fact that no income or benefit was derived is irrelevant. The assets are still subject to forfeiture.

To the extent the Bill so deprives offenders, the Society does not support the bill. Indeed, the Society wishes to express its opposition in the strongest terms.

The Bill is inimical to a free society which applies the rule of law and encourages the citizen to be self-sufficient. To say that it is draconian only tells a fraction of the story. A citizen should not be deprived of his or her lawfully acquired assets because he commits an offence.

I note that the government's main reason for bringing in this bill is that it promised to do so at the last election. I am happy to say that I would be delighted for this to be a broken promise, and I will not criticise the government for it. This is a bad idea and the government should dump it. The Greens' opposition to this bill has absolutely nothing to do with the types of offences that are identified as the trigger for the total confiscation of an offender's assets. The offences that trigger this confiscation are all serious crimes and they deserve to be punished appropriately. In fact, the crimes listed all do attract significant penalties, including gaol terms of up to life imprisonment.

Whilst the government will no doubt claim that any opposition to this bill is somehow people being soft on drugs, I need to say—and I think I have the support of the Hon. Ann Bressington in this, who no-one can accuse of being soft on drugs—the Greens' opposition is based on higher principles, on longstanding legal standards of fairness and justice that are being absolutely trashed in this bill. These principles are conveniently outlined for all members in the Law Society's submission.

The Law Society raises a number of issues and I will deal with a few of them in some detail. First, the Law Society questions the legality of this legislation. It refers to the High Court case of International Finance Trust Company Limited against the New South Wales Crime Commission in 2009. Whilst the society does not outline in detail the precise areas of the bill it believes are most likely to be held invalid, the government should take heed of the warning and go back to the drawing board.

I remind members that the government has form in relation to getting these things very wrong. As one of only two members in this place who voted against the serious and organised crime bill, aspects of which were ultimately found to be unlawful, I think I am entitled to raise my doubts again in relation to this bill. What legal advice does the minister have that this bill will not go the way of other draconian bills and be the subject of legal challenge and disallowance in the courts?

The Law Society points out that there is no requirement for there to be any nexus between the penalty, that is, the loss of all one's assets, and the offending. That approach does offend the principle of the penalty being appropriate and proportionate to the crime that has been committed. The Law Society points out that this bill effectively provides for an additional penalty to that which has been set by statute as the appropriate response to this offending. The Law Society says that:

It is patently unjust and unfair for a citizen to be given an additional punishment for an offence above that for the actual offending, let alone one of losing their lawfully acquired assets. Not only is there no nexus to the assets, but there is no quantitative formula or basis that applies in assessing the value of the assets that should be forfeited. In truth, there could be no quantitative formula because there is no nexus between the offending and the assets.

The Law Society also points out that the situation here needs to be contrasted with laws that we do have that relate to authorities being able to acquire the proceedings of crime or even acquire property that was used in the commission of the crime. I will come back to both those later. The point to note now is that we do in fact have a substantial raft of legal tools that enable the authorities to acquire ill-gotten gains and in fact to acquire property used in the commission of offences. Members would be well aware, for example, certainly of cases involving money derived from drugs or theft but also even those who are caught poaching abalone who would find their boats and other property confiscated.

The government points out, as one of its justifications for this legislation, that it has been done elsewhere and it invites us to be part of a race to the bottom. In the minister's second reading explanation there is a remarkable passage that I think we are supposed to take from it that the government is exercising an act of kindness in the fact that it will not take absolutely every single thing that a person owns.

What the minister said in the second reading explanation, when he referred to the scheme in Western Australia and the Northern Territory, was:

Under the WA scheme and its counterpart in the Northern Territory, all of the declared drug trafficker's assets are subject to forfeiture. Absolutely everything. Baby clothes, washing machine, garden hose, children's toys—the lot.

The minister then goes on:

So, in order to ameliorate the harshness of the scheme, it is proposed that the prescribed trafficker forfeit everything except what a bankrupt would be allowed to keep.

It then sets out where you can find that list of basic necessities of life that a bankrupt can keep. That does not really tell the whole story, because there was a sentence in there that I left out and that is a sentence which basically gives you the true reason why the government is not going down the absolutely draconian path of the WA and the Northern Territory and that is:

The Government has taken the view that, under the current attitude of the High Court, such a scheme is, if challenged, likely to be held unconstitutional.

That is remarkable, that the government is itching to take baby clothes, washing machines and garden hoses and the only reason they are not doing it is because they are worried that the pesky High Court—the pesky court that has recently declared their Malaysia solution invalid—may well declare that taking absolutely every single thing a person owns and leaving them naked in the street might be unconstitutional and, therefore, they could not go quite that far. What a remarkable thing for a government to say.

The Law Society also points out that the legislation before us is discriminatory; that is, that it discriminates against those who have actually acquired some property against those offenders who have absolutely no assets at all. The Law Society points out that a range of innocent third parties will become victims under this legislation. Children will become homeless when their parents' home is confiscated under this legislation. They will be deprived of their means of transport. They may be deprived of their tricycles and bicycles, if those are owned by the drug offender. In fact, it is beyond comprehension that a government could see that this is a good thing to be doing to affect innocent third parties, in particular children, in this way.

The Law Society points out a range of existing provisions that apply, including provisions that relate to the proceeds of crime being attached and also unexplained wealth. In fact, I support measures that do attach unexplained wealth, even though that is on the edge a little bit, the fact that a person can have assets taken from them even though there might not be absolute direct proof that those assets were acquired through the commission of an offence, but I think there is a place for unexplained wealth.

If a person cannot explain why it is they had millions in their bank or why they had this portfolio of shares, then I think there is a case to say that in the absence of an explanation a presumption in favour of the fact that it might be the proceeds of crime can be drawn, but this does not go anywhere near that. This is saying: if you commit these offences and you own something, it is gone, it is taken. It does not matter that it was your hard-earned life savings, it does not matter that it was a bequest from your late grandmother, it does not matter where it came from, it is going to be taken.

The Law Society also points out that there is a complete lack of due process in relation to the ability to challenge any such order. Your property is taken from you and you do not have any right of appeal or challenge.

There are a number of other things that I will not go into in detail. I think members get the idea that the Greens are not happy with this bill. We will not be supporting the bill, and we will be opposing the bill. Having said that, there are a number of amendments on file—certainly the ones I have seen from the opposition—which seek to remove the draconian elements and leave in place some very minor inoffensive provisions. We will consider those amendments; that might be the way to go.

Certainly, the way in which this bill has been drafted, it looks to be very close to beyond redemption. We will keep an open mind in relation to the amendments, but certainly it is not in anything like the form the Greens would be able to support. We will be opposing this bill at the second reading and then we will see whether it goes further.

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

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