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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-11-14 Daily Xml
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CRIMINAL ASSETS CONFISCATION (PRESCRIBED DRUG OFFENDER ASSETS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 18 October 2013.)

The Hon. S.G. WADE (15:58): The Criminal Assets Confiscation (Prescribed Drug Offender Assets) Amendment Bill 2012 was tabled in the House of Assembly on 16 October 2012. The bill does two things: first, it authorises the confiscation of assets down to the bankruptcy level for certain drug offenders, whether or not the assets were legally acquired; and, secondly, it diverts proceeds from the scheme from the Victims of Crime Fund towards courts and justice expenditure of government.

The Liberal Party has consistently supported the confiscation of proceeds of crime, instruments of crime and unexplained wealth. We support depriving citizens of not only the proceeds of crime but also the instruments of crime, even where the instrument of crime is lawfully acquired. But this bill seeks to seize legally acquired assets which have no relationship to crime. Neither the 2011 bill, which was an earlier version of this bill, nor a 2012 version of the provisions passed the Legislative Council. In his second reading speech on this bill in the House of Assembly 13 months ago the Attorney-General said:

The idea that all of the property of certain drug offenders (described in the Bill as prescribed drug traffickers) should be confiscated, whether or not it has any link to crime at all and whether or not legally earned or acquired, originated in the Western Australian Criminal Property Forfeiture Act 2000.

He went on to say:

The Northern Territory Criminal Property Forfeiture Act contains very similar provisions, obviously modelled on the Western Australian Act.

The Law Society of South Australia is of the view that the bill before us may infringe the Kable principle by attempting to compel the court to comply with an administrative decision made without court consideration. In doing so the administrative decision-maker exercises powers usually reserved for the court.

On 28 March 2013, the Northern Territory Court of Appeal in the case of Emmerson v The Director of Public Prosecution & Ors, held that the Northern Territory acts impermissibly compromised the independence of the Supreme Court, attracting the principle in Kable v The Director of Public Prosecutions. The acts were held to be unconstitutional. As I noted earlier, the South Australian government has said that the bills we are debating today are very similar to the Northern Territory acts.

On 11 October 2013, merely a month ago, the High Court gave special leave for an appeal on the case. The appeal is expected to be heard in early 2014. In this context, the opposition urges the council not to support the bill. We believe it would be highly likely to be challenged. The government has already wasted far too much money on legal frolics to the High Court. We consider that even if the bill was well founded (which we do not think it is) we should wait for the High Court's judgement in the Emmerson case. On that basis, I move to amend the motion of the minister as follows:

Leave out the word 'now' and insert after 'second time' the words 'this day six months'

The Hon. J.A. DARLEY (16:02): I rise to make a very brief contribution to this bill. This bill certainly has a long history dating back to the government's 2010 election policy. Given its contentious nature, we have seen it split from the original proposal into two separate bills, the first of which I was more than willing to support. That said, I still hold concerns about some aspects of the current bill. I am by no means suggesting that we adopt a soft approach towards drug offenders. These are individuals who wreak havoc on our communities and should be subjected to appropriate penalties.

However, as the Hon. Stephen Wade has pointed out, there is an impending High Court challenge in the Northern Territory concerning the Emmerson case. I appreciate that the legislation in question in that jurisdiction is not identical to that proposed here but our bill is certainly modelled on it. The general consensus appears to be that the High Court challenge should provide some further clarity about the constitutional consequences of the sort of legislation that has been proposed. These are important matters that need to be addressed. For those reasons, I am inclined to support the position of the opposition.

The Hon. K.L. VINCENT (16:03): Just briefly, to aid the proceedings of the council, Dignity for Disability has previously vehemently opposed this bill in its previous incarnation and, for those same reasons, we will be doing it again.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (16:04): I thank the honourable members for their second reading contributions. It is disappointing to hear that, yet again, there is not support for this important bill. It is unfortunate that it would appear that this bill will, yet again, be defeated and, again, the opposition and it seems the minor parties are still unprepared to support what was an 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. Even recent events that have vividly reaffirmed the nature of the menace posed to the community by the activities of organised criminal gangs who obtain their illicit income from commercial drug-related dealings have not obviously caused a re-evaluation of their approach. I look forward to the committee stage.

The council divided on the amendment:

AYES (11)
Darley, J.A. Dawkins, J.S.L. Franks, T.A.
Lee, J.S. Lensink, J.M.A. Lucas, R.I.
Parnell, M. Ridgway, D.W. Stephens, T.J.
Vincent, K.L. Wade, S.G. (teller)
NOES (8)
Brokenshire, R.L. Finnigan, B.V. Gago, G.E. (teller)
Hood, D.G.E. Kandelaars, G.A. Maher, K.J.
Wortley, R.P. Zollo, C.
PAIRS (2)
Bressington, A. Hunter, I.K.

Majority of 3 for the ayes.

Amendment thus carried.

The PRESIDENT: I declare that the second reading be deferred for six months, in accordance with standing order 287.

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