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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-09-27 Daily Xml
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CRIMINAL ASSETS CONFISCATION (PRESCRIBED DRUG OFFENDERS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 15 September 2011.)

The Hon. S.G. WADE (16:02): Before addressing the bill itself, I would like to make a comment about the management of the bill today. Yesterday morning, all members of the council received a message from the government in the following terms:

Due to the availability of a legal officer, it would be appreciated if the order of the priority could be slightly reorganised. The Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill will now need to be debated first on Tuesday 27 September 2011 with the aim of completing the committee stage the same day if possible.

The opposition appreciates that from time to time circumstances arise and it is necessary to reorder the business of the council to accommodate external factors. We are pleased that we are able to accede to that request and will strive in good faith to complete consideration of the bill today.

However, I want to reiterate the caveat in the government's message, that is, that the aim is to complete the committee stage today if possible. This is an important piece of legislation and it is important that it not be rushed. If issues arise today that mean that we cannot give proper consideration to this bill, the opposition will be seeking for the matter to be held over. In that regard, I remind the minister that the council is the captain of its own business and it does rely on goodwill and cooperation for it to operate properly.

The Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill 2011 was introduced by minister Koutsantonis on 18 May 2011. The bill follows through with the ALP election pledge to confiscate the assets of repeat drug offenders to the point of bankruptcy, even where confiscated assets had no connection to criminal activity. This council, in my view, is again debating legislation which is bad law—bad law driven by PR spin rather than by evidence-based policy. Not only is the bill an affront to legal principles and basic fairness but also it does nothing to make South Australia safer.

In my view, former attorney-general Atkinson was the worst attorney-general in the state's history. He served in a cabinet led by a premier with a low regard for the legal profession and its role in the administration of justice. The attitude of this government is summed up in one slogan: rack, pack and stack. For this government, being tough on crime is a simplistic commitment to incapacitation through imprisonment. The legacy of nine years of damage done and wasted opportunities will be with us for decades to come. Crime will be higher than it otherwise would be; correctional services expenditure will be higher than it otherwise would have been.

The legal profession, admittedly, did breathe a collective sigh of relief at the appointment of Attorney-General Rau, hoping for a return to reason. However, the profession is becoming increasingly concerned that all that has changed is the tone of the discussion. Attorney-General Rau spares the profession the vitriol but there has been no change in direction. In that context, the profession could just have kept its head down and enjoyed the respite, but to its credit increasingly the profession is expressing its concern at the direction of this government, its policy and its legislation. The reality is that Attorney-General Rau has turned out to be a pale imitation of attorney-general Atkinson. He has maintained the rack, pack and stack approach to law and order; he just lacks the passion of his predecessor—which brings us to this bill.

A fundamental principle of the Rann government's PR approach is that a policy has not really been announced unless it has been announced and reannounced a number of times. In this case the Attorney-General attempted not once, not twice but three times to put this bill on the media agenda, all with the usual spin about being tough on crime. The public is tired of the rhetoric; it just wants results.

On 15 September the Attorney-General yet again went to the media on this issue for the third time. For all his huffing and puffing the Attorney-General was only reported in one newspaper article. The media had heard it all before from a tired government desperate to cut through on a poorly thought-out policy. We may well get a fourth release today. The opposition is happy to put its case because we believe it is our duty to provide better law for South Australians, because better laws properly implemented mean a safer South Australia.

To highlight the shallowness of the Labor approach I will highlight a series of sections of the 2010 ALP election policy. Under the heading 'Taking the Profits from Drug Takers', the policy states that the ALP is committed to 'hitting drug dealers and traffickers where it hurts by targeting their illegal profits'. The opposition has no problem with targeting the profits of criminals, but that is not new. In this aspect the policy merely affirms the law as it stands. It is a long-standing principle of common law that criminals are not entitled to profit from their crimes. We have had legislation for some time to deprive criminals of the proceeds of crime and the instruments of crime. Again, in typical ALP style, the government has included existing criminal confiscation arrangements in its policy and much of this bill merely finetunes the existing legislative framework.

This reminds me of the Controlled Substances (Offences Relating to Instructions) Bill introduced by the Attorney-General last year. That bill purported to be implementing another ALP policy that merely committed to introduce law that already existed. That time it was relating to providing instructions for drug manufacturing. So lacking in leadership and ideas, this government has taken to releasing existing laws as new policy. I quote another passage from the 2010 ALP policy:

This deterrent is an effective way of disrupting and hindering the activities of serious organised crime gangs by removing or reducing profits.

Again, this deterrent already existed both then and now in law. If the profits are in fact derived from crime, then existing laws allow the full confiscation of such profit, not just the reduction as proposed by the policy. The Attorney-General had said in an earlier press release on 16 May 2011 that:

Criminal gangs typically use the proceeds of drug trafficking to create a lavish lifestyle, as well as build their criminal capabilities.

Again, if the drug trafficker is using the proceeds of crime to create a 'lavish lifestyle' that is a failure of the government to use existing proceeds of crime legislation to confiscate those assets. It is almost as if the government were saying, 'We're not going to bother using existing legislation because more law means more media.'

In his media release dated 15 September 2011 the Attorney-General states that the opposition position on the bill would:

...send a message to serious criminals who traffic drugs that they should be able to retain their fortunes, as long as they launder the proceeds of their crimes.

Under section 138 of the Criminal Law Consolidation Act 1935, money laundering is already an offence punishable with a maximum penalty of 20 years' imprisonment. If a person is found to have laundered the proceeds of crime, and the proceeds are under the effective control of the person as per the bill and the act, then those proceeds can be taken away. The Liberal Party has supported and continues to support confiscation of the proceeds and instruments of crime, but there is one aspect of the policy that is novel and we do not support it. We argue that it is counterproductive. The bill reflects the ALP policy commitment that reads:

All of a convicted offender's property can be confiscated, whether or not it is established as unlawfully acquired, and whether or not there is any level of proof about any property at all.

This goes to the heart of the legislation we see before us today. It contradicts the focus on crime and grabs lawfully acquired assets of people. The government has given no justification as to how this policy and how this legislation will reduce drug trafficking.

The bankrupting of drug offenders may indeed have the opposite effect of increasing drug offending, for the offender pushed to the point of bankruptcy may be so desperate for money that they turn again to crime. Also I fear that confiscation to the point of bankruptcy will disproportionately affect children and other innocent people. Children of offenders are already at risk of becoming offenders. Heavy-handed confiscation that could destabilise the family unit, even after the offender has been removed, is likely to increase the risk of offending behaviour, particularly if clumsy implementation of justice embitters the young people involved. The confiscation of a family's legally acquired assets is hardly a recipe for successful social inclusion. In any case, the fight against organised crime is far broader than the fight against drugs. If the government really believed that this approach is likely to be an effective punishment, why not apply it against all repeat offenders?

The Attorney-General has claimed that the last election has given him a mandate to push this legislation through parliament. That mandate, he claims, entitles him to anything the ALP policy set proposes and that that right should be unchallenged. I take the opportunity to remind the Attorney-General that the Labor Party did not receive a majority of voter support in the House of Assembly, and more so that 70 per cent of voters voted for a non-government candidate in this council. The Law Society has commented on this bill and expressed its opposition in the strongest terms. It has described the legislation as:

...inimical to a free society which applies the rule of law and encourages the citizen to be self-sufficient. To say it is draconian only tells a fraction of the story.

The Australian Lawyers Alliance says that aspects of the bill:

...unfortunately bear witness to a further erosion of the rights and principles central to the administration of justice.

Later in the submission it says:

The bill represents a horrendous incursion into the rights of citizens, with legislation being drafted which essentially eases the burden upon the prosecuting authority to prove its case.

These comments are a damning indictment of a government that claims to be in the tradition of Don Dunstan.

The bill also does not make sense. Why is the government bothering with it? What is the government's true motivation in bringing the bill forward? Having introduced legislation to address issues that significantly can already be addressed under existing legislation, the real reason for the government's desperation to have the bill passed is seen in clause 36. The clause proposes to set up a so-called justice resources fund. The fund's stated purpose is 'for the provision of courts' infrastructure, equipment or services' and 'the provision of programs and facilities within the justice system for dealing with drug and related crime'.

In other words, the assets seized under the bill will fund the Attorney-General's Department. It is a clear cash grab that hopes to fill the gaping hole in the state's finances created by this government's mismanagement, a government whose creativity is only shown through new and clever ways to tax people, clever measures which, ultimately, hurt the vulnerable, in this case victims. Under existing criminal assets and proceeds of crime legislation, confiscated finances are added to the Victims of Crime Fund. That fund was established to provide some redress for victims regardless of their aggressor's ability to pay. The justice resources fund, on the other hand, essentially diverts funds that are currently being set aside for victims to fund projects usually funded out of general revenue. It is a stark demonstration of the parlous state of the government's finances and the poor priorities of the government that it needs to start sneakily raiding Victims of Crime Fund revenue to pay for basic government services.

Stakeholders like the Law Society of South Australia have also expressed concern that not only is this legislation bad policy, but it may in fact be unconstitutional. Concerns have been raised as to whether the legislation offends the Kable principle, as set out in Kable v Director of Public Prosecutions for NSW in 1996. There have also been similar conclusions drawn from International Finance Trust Co Ltd v New South Wales Crime Commission in 2009.

We all know that this government enjoys a frolic in the courts. Like a gambling junkie, the government seems to go out of its way to spend more time and money in the courts—the problem is that it is wasting taxpayers' money, not its own. Whether it is a minister defending themselves against defamation proceedings or the government handing out hundreds of thousands of dollars to outlaw bikie gangs for court costs, we need to stop government waste in legal frolics.

To be fair, the government does acknowledge the constitutional risk in its second reading speech, and I quote from the second reading contribution of minister Gago:

Under the WA scheme and its counterpart in the Northern Territory, all of the declared drug trafficker's assets are subject to forfeiture…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. 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.

Ameliorate the harshness of unconstitutionality? Remarkable. The revenue collected by the justice resources fund may need to fund the court costs in proceedings that the scheme creates, again at the expense of victims. I reiterate the Law Society advice in relation to the bill: it is still not confident the government has achieved its stated purpose and assured constitutionality.

The Attorney-General has attacked the opposition in the media for not supporting the prescribed drug offender provisions in this bill or the High Court challenges that would result from it. For our part, we see it as irresponsible to support a law that is of questionable constitutionality. We find that the provisions of this bill are not only unlikely to have a positive impact but to punish those who had nothing to do with the crime.

The Attorney-General has also attacked the opposition for not offering amendments, but the fact is that we foreshadowed amendments in the House of Assembly and we have filed amendments in this place. We have amendments filed which amend the bill to remove the elements of the bill that are harmful to victims, that abandon fair legal principle, that may be unconstitutional, and those that serve no purpose in reducing crime. We will support the technical amendments which finetune the existing regime and which, I understand, make up 22 of the 38 clauses in the bill.

Let us be clear: the Attorney-General lacks credibility when he demands that the Legislative Council amend the bill. If we had engaged in a futile effort to try to salvage a bad law, the Attorney-General would have howled mercilessly, as he did in relation to the Summary Offences (Weapons) Amendment Bill 2010. I note that he now refers to that bill as 'the pig marketing bill'. On one bill he demands amendments: on another he rails against the council when we do amend.

To assist the council in its consideration, I advise that the opposition will oppose clause 7. If we do not get support for that position, we are attracted to the amendment of the Hon. Ann Bressington, because that clarifies that a person can only be declared a prescribed drug offender if they commit a relevant offence on three separate occasions. A number of members have indicated that they have concerns with the bill, and many of those concerns are concerns that the opposition shares.

Many of us have been assisted by the Law Society and the Australian Lawyers Alliance to appreciate the range of problems with this bill, and I would like to take this opportunity to thank them for their diligent support. We are grateful for the feedback of stakeholders in so many ways. I call on the council to demand that the government focus on real solutions to deal with the drug crime that our communities face, and support the opposition amendments as we progress through the bill.

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (16:19): I understand that there are no further second reading contributions, so by way of some brief concluding remarks I would like to thank honourable members for their contributions. This bill is part of an election commitment by this government and seeks to introduce provisions to allow confiscation to the point of bankruptcy of repeat drug offenders' assets, even those that have been lawfully acquired. If an offender has committed three prescribed offences within 10 years, they are then eligible to be a declared drug trafficker.

It is obvious from the second reading contributions that the government does not have support for the major thrust of this legislation, which is disappointing; however, I thank members for their contribution and look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The Hon. S.G. WADE: I move:

Page 3, lines 11 to 13—Delete clause 4

This amendment is the first of 22 amendments that remove provisions relating to the prescribed drug offenders confiscation scheme. I propose that this amendment be a test amendment for the following 21 amendments, which I suggest are consequential. If members were persuaded by my contribution not to support the amendments, it might assist the committee if they let me know so I can spare you the restatement of my case.

The Hon. G.E. GAGO: The government rises to oppose these amendments, and we are happy for this to be treated as a test for the rest of the honourable member's amendments, or this particular series of amendments.

The bill does three things: it contains the election pledge of the government in relation to the confiscation of the assets of certain serious drug offenders, it confirms the result of the decision of the Full Court in the case of the DPP v George [2008] SASC 330, and it makes some minor drafting changes to the principal act thought desirable by parliamentary counsel. The effect of the amendments tabled by the Hon. Stephen Wade is, quite simply, to delete all those parts of the bill dealing with the election policy, leaving the other two very minor aspects of the bill unaffected.

Again, the opposition and, it seems, the minor parties are obviously not prepared to support the election pledge that this government made. Obviously, they do not respect the mandate that this government has, given that this was part of an election pledge.

The effect of the government's election policy has been well understood by those who oppose it. The policy is to effectively bankrupt those drug dealers convicted of a commercial serious drug offence and those convicted of three more minor (but nevertheless serious) drug offences of trafficking, manufacturing and the like. The policy reflects a more generous version of legislative policy enacted in Western Australia and the Northern Territory.

It seems from the course of the debate that the majority of members are quite clearly unpersuaded by the virtues of this approach. As I said, if the government loses this test amendment, it will oppose the rest of the amendments as a matter of form. But we see no point in us speaking to them; we see this as a test.

Amendment carried; clause deleted.

Clause 5.

The Hon. S.G. WADE: I move:

Page 3—

Lines 15 to 17 [clause 5(1)]—Delete subclause (1)

Lines 19 to 28 [clause 5(3), (4) and (5)]—Delete subclauses (3), (4) and (5)

Page 4, lines 1 to 10 [clause 5(7)]—Delete subclause (7)

Amendments carried; clause as amended passed.

Clause 6 passed.

Clause 7.

The Hon. S.G. WADE: I move:

Page 4, lines 21 to 40 and page 5, lines 1 to 28—Delete clause 7

Amendment carried; clause deleted.

Clause 8.

The Hon. S.G. WADE: I move:

Page 5, lines 32 to 38—Delete clause 8

Amendment carried; clause deleted.

Clause 9.

The Hon. S.G. WADE: I move:

Page 5, lines 32 to 38—Delete clause 9

Amendment carried; clause deleted.

Clause 10.

The Hon. S.G. WADE: I move:

Page 6, lines 1 to 25 [clause 10(1)]—Delete subclause (1)

Amendment carried; clause as amended passed.

Clause 11 passed.

Clause 12.

The Hon. S.G. WADE: I move:

Page 6, lines 38 to 41 and page 7, lines 1 to 7 [clause 12(1)]—Delete subclause (1)

Amendment carried; clause as amended passed.

Clause 13 passed.

Clause 14.

The Hon. S.G. WADE: I move:

Page 7, lines 16 to 25—Delete clause 14

Amendment carried; clause deleted.

Clause 15.

The Hon. S.G. WADE: I move:

Page 7, lines 16 to 25—Delete clause 15

Amendment carried; clause deleted.

Clause 16.

The Hon. S.G. WADE: I move:

Page 7, lines 26 to 31—Delete clause 16

Amendment carried; clause deleted.

Clause 17.

The Hon. S.G. WADE: I move:

Page 8, lines 1 to 41—Delete clause 17

Amendment carried; clause deleted.

Clause 18.

The Hon. S.G. WADE: I move:

Page 9, line 5 [clause 18, inserted section 62A]—Delete 'Subject to section 59A but despite' and substitute: 'Despite'

Amendment carried; clause as amended passed.

Clauses 19 and 20 passed.

Clause 21.

The Hon. S.G. WADE: I move:

Page 10, lines 6 to 11 [clause 21(3), inserted subparagraph (ia)]—Delete inserted subparagraph (ia)

Amendment carried; clause as amended passed.

Clause 22.

The Hon. S.G. WADE: I move:

Page 10, lines 17 to 38, and page 11, lines 1 to 6 [clause 22, inserted section 76A]—Delete insertion 76A.

Amendment carried.

The Hon. S.G. WADE: I move:

Page 11, line 9 [clause 22, inserted section 76B]—Delete 'but subject to section 76A'

Amendment carried; clause as amended passed.

Clauses 23 to 32 passed.

Clause 33.

The Hon. S.G. WADE: I move:

Page 14, lines 1 to 18—Delete clause 33

Amendment carried; clause deleted.

Clause 34.

The Hon. S.G. WADE: I move:

Page 14, lines 19 to 21—Delete clause 34

Amendment carried; clause deleted.

Clause 35.

The Hon. S.G. WADE: I move:

Page 14, lines 22 to 24—Delete clause 35

Amendment carried; clause deleted.

Clause 36.

The Hon. S.G. WADE: I move:

Page 14, lines 25 to 38, and page 14, lines 1 to 22—Delete clause 36

Amendment carried; clause deleted.

Clause 37 passed.

Clause 38.

The Hon. S.G. WADE: I move:

Page 16, lines 9 to 24 [clause 38, inserted section 224A]—Delete inserted section 224A

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (16:36): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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