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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-11-13 Daily Xml
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CRIMINAL ASSETS CONFISCATION (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 16 October 2012.)

The Hon. A. BRESSINGTON (18:01): I rise to speak to the Criminal Assets Confiscation (Miscellaneous) Amendment Bill which seeks to make relatively minor amendments to the existing confiscation regime, particularly relating to pecuniary penalty orders. As other members have detailed, the provisions of this bill are largely identical to those in the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill except for that bill's harsh and draconian prescribed drug offender provisions which rightly saw it defeated in this place.

The act currently provides that a court must make a pecuniary penalty order requiring a person to pay the amount requested by the Director of Public Prosecutions if satisfied that the person has either derived benefits from the commission of a serious offence or that an instrument of a serious offence is owned by that person.

Whilst I fully support any and all proceeds of crime being confiscated from criminals, as I have previously relayed in this place, I am uncomfortable with the automatic confiscation of the instruments of crime, particularly given the adverse and, in some cases, devastating impact this can have on innocent family members. I have previously detailed in this place two Western Australian cases, one in which the elderly parents lost their family home due to the stupid and selfish actions of their son who was storing cannabis in their ceiling. In the other, a family risked losing everything due to the father's desperation after having lost his job and fallen behind in mortgage payments.

Clearly, I am not alone in this view, with the Full Court of the Supreme Court finding in DPP v George [2008] SASC 330 that to interpret the 'must' in the act to truly mean 'must', with no ability to exercise discretion, would have 'the potential to bring the administration of justice into disrepute' and would result in 'harsh consequences'. As such, the Supreme Court, to quote the Attorney-General, 'strained the ordinary use of language' to read into the act a discretionary power when determining a pecuniary penalty order application. In response, the Attorney-General is proposing to codify the Supreme Court's ruling. Whilst the Attorney-General may suggest that his motivation is to remove from the statutes a law that has to be so creatively interpreted to avoid an outcome that is unfair and unjust, I suspect otherwise.

My reading of the judgement is that the discretion read into the act would apply to a pecuniary penalty order application for both the benefits of crime and/or the instruments of crime. However, the Attorney-General in this bill seeks to limit the discretion only to instruments of crime, with the courts required to make an order relating to the benefits of crime. Whilst I support this, the Attorney-General should be frank so that this parliament's intention is clearly ascertainable to the courts if this is later challenged.

The bill also makes other minor amendments to the act, such as enabling extension periods in which to finalise a challenge to pecuniary penalty orders and ensuring that offenders do not receive a discount on their sentence in recognition of the consequences of forfeiture if they also receive a discount on the amount forfeited for the same reason, and vice versa, all of which I support.

Debate adjourned on motion of Hon. K. J. Maher.

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