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Legislative Council - Fifty-Third Parliament, First Session (53-1)
2014-12-04 Daily Xml
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Bills

Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill

Committee Stage

In committee.

(Continued from 30 October 2014.)

New clause 24.

The Hon. S.G. WADE: I seek leave of the committee to withdraw the amendment I moved in relation to proposed clause 24.

Leave granted.

The Hon. A.L. McLACHLAN: The Hon. Stephen Wade has withdrawn his amendment to enable me to move my amendment. I move:

Amendment No 1 [McLachlan–1]—

Page 11, after line 4—After clause 23 insert:

24—Amendment of section 226—Appeals

Section 226—after subsection (3) insert:

(3a) On an appeal under this section the court may discharge or vary the order if satisfied that it is in the interests of justice to do so (and may do so regardless of whether this Act authorised or required the order to be made).

25—Insertion of section 229A

After section 229 insert:

229A—Annual report relating to prescribed drug offenders

(1) The Attorney-General must, on or before 30 September in each year, lay before both Houses of Parliament a report on the operation of the amendments enacted by the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Act 2014 during the financial year ending on the preceding 30 June.

(2) A report under this section must include the following information for the financial year to which the report relates:

(a) the number of restraining orders and forfeiture orders made in relation to property owned by, or subject to the effective control of—

(i) prescribed drug offenders; and

(ii) persons who have been charged with, or are suspected on reasonable grounds of having committed, an offence that will, if the person is convicted of the offence, result in him or her becoming a prescribed drug offender;

(b) details of property forfeited under this Act that was, immediately before such forfeiture, owned by, or subject to the effective control of, a prescribed drug offender.

(3) A report required under this section may be incorporated into any other report required to be laid before both Houses of Parliament by the Attorney-General.

I advise the chamber that, subsequent to the last time we were in committee on this bill, we reflected on the view of the government in relation to the amendments and subsequently had a briefing, which has been facilitated by the Attorney-General, and have sought to recast our amendment. So, we are still consistent with our wish to have an appeal in relation to the interests of justice but have attempted to recast it and restructure it to be consistent with those matters that have been raised by the government on the last occasion we were in committee.

The Hon. G.E. GAGO: The government rises to oppose this amendment. This amendment seeks to insert two new clauses in the bill. The first, clause 24, amends that section of the act that deals with appeals. The effect of the amendment is to give a court on appeal a discretion, completely unstructured except by the vague notion of the 'interests of justice', and the court may do so 'regardless of whether this act authorised or required the order to be made'.

I concede that in this amendment, as opposed to prior amendments, the discretion is placed in the constitutionally correct place, the court, but there is little else to commend this amendment. It comes to this, basically, not only in the case of a prescribed drug offender but in the case of any confiscation order, including confiscation of the proceeds of crime, pecuniary penalty orders, literary proceeds orders, any order required or justified by the law may be set at nought on the basis that a judge thinks it is just to do so.

This amendment renders the whole act, not just the controversial bill now before the council, completely unnecessary. It could be replaced by this one section. It would also place South Australia at odds with any idea of a cooperative national confiscation of assets scheme and interlocking legislation designed to attach, directly, the profits of crime. This amendment is completely unacceptable to the government and will be opposed.

The second amendment inserts a whole new clause, clause 229A, into the act, requiring an annual report to parliament on the operation of the legislation as it deals with prescribed drug offenders. The government's response to this is simple. This sort of safeguard would be quite acceptable to the government as some sort of compromise had the government's initiative and election promise been passed by the council, but it has not. Instead, something entirely different is emerging and to have the government's initiative and election promise replaced by something else not of the government's making and to require the government to report to parliament is just simply a bridge too far. So, again, this amendment is unacceptable to the government and we will strongly oppose it.

The Hon. S.G. WADE: Could I ask the minister which election commitment she purports to be implementing?

The Hon. G.E. GAGO: I am advised both at the last election and the one before that. It is outlined in, I think it is the second reading—

The Hon. S.G. Wade interjecting:

The Hon. G.E. GAGO: I am on my feet; I have not sat down yet. I understand that it is referenced in the second reading contribution, if the member wants to look that up.

The Hon. S.G. WADE: If the minister does claim that she is implementing the 2014 election commitment, could she highlight where in the bill will the bill change provisions so that a person can, on the basis of a court decision, have it so that they cannot hold property for five years, in accordance with the Labor Party's commitment at the last election?

The Hon. G.E. GAGO: I have been advised that this has been explained many times to the council, that it was a supplementary promise. It relied on—

Members interjecting:

The Hon. G.E. GAGO: No, not at all. We have been very transparent about this. We have said to the opposition that if they pass this then we will look to go further, but the opposition has not supported this so we are not going to take that other step.

The Hon. S.G. WADE: You would have thought that after having a second no-confidence motion against one minister—

Members interjecting:

The Hon. S.G. WADE: Sorry, Mr Chair, I thought I had the call.

The CHAIR: Order! The Hon. Mr Wade has the call.

Members interjecting:

The CHAIR: Order. The Hon. Mr Wade has the floor.

The Hon. S.G. WADE: I would suggest to the minister that as we have had a second no-confidence motion in the same minister in the same year she should perhaps desist from coming into this council and misrepresenting the opposition's position. I made it very clear in my earlier comments on the bill that the opposition is not opposing this legislation. What it is proposing to do is insert elements from the government's own policy.

The government's own policy says that they will allow a judicial review of whether or not a person can hold property when they are subject to the prescribed drug offenders act. Now the government wants to play games. I obviously do not have the Hansard because it has only just been put on the record, but what the minister said is that if the opposition had cast it in a different way then they might well have been able to accept it in the context of the implementation of their policy. Then why not talk to us about it?

The Hon. Andrew McLachlan and myself and the honourable shadow attorney-general from another place have spoken to the government. We have had a briefing, which was extremely helpful, and I thank the government for that. The Hon. Andrew McLachlan—I do not have the date, it was his correspondence—provided this amendment to the government some days ago. Not one attempt has been made to try to massage it to be a mutually acceptable proposal. We have a government that wants a bill and an opposition that says it would like to support the facilitation of that bill, yet we get, shall we say, a stonewalling approach.

This is markedly different from the approach in the previous bill. Mr Will Evans, the adviser for the Attorney-General on the SACAT bill, diligently sought to listen to and understand the opposition's concerns and address them, and that was substantially done, and what we had was a resolution of the bill without the sort of angst that the minister is trying to bring into this debate.

The fact of the matter is that the government itself has committed to the people of South Australia to introduce an element of review into this legislation. For the government to say that it is abhorrent that the opposition is trying to help them implement their own policy is slightly bizarre.

The Hon. M.C. PARNELL: I just want to put on the record that the Greens will be supporting the Hon. Andrew McLachlan's amendments. If I understood the minister correctly, she said that it creates some havoc with the government's regime, to which our response is: good; we do not like the bill. We will be voting against the bill, but we are voting for these amendments.

The Hon. D.G.E. HOOD: Members will recall that some months ago when this bill was first introduced, Family First made a second reading contribution strongly in support of it. We believe this is exactly the direction in which we should be heading in order to deal with what is a very, very serious problem in our community, and that is the overwhelming saturation of illicit drug use. What we are particularly attracted to in this bill is that it targets the so-called bigwigs, those who are making a living out of the misery of people who succumb to substance abuse. That is the background.

I mean no offence to the mover of the amendment, but I have literally just read this amendment for the first time. It was only filed today and I was not aware that there was an amendment until I reached for the papers to prepare for what I thought would be a short debate on this particular issue. However, given the government's strong protestations of the first amendment and the potential for it to substantially change the bill, I am in the position right at this moment where Family First cannot support the first amendment.

As I said, I have not had a chance to consult on it or even read it carefully and consider it, so I am erring on the side of caution and am inclined not to support that amendment at this stage. With respect to the second amendment, I would say that it is relatively straightforward, that an annual report simply giving account for what has happened under this new act when it comes in—a bill now but an act, should it pass—is actually a very good idea and I see nothing wrong with that. So, we will be supporting the second amendment.

The Hon. J.A. DARLEY: Just for the record, I indicate that I will support the Hon. Andrew McLachlan's amendment.

The Hon. K.L. VINCENT: Just to assist the chamber, I remain diametrically opposed to this bill, but I will support measures to make a bad bill better and support the amendment.

The Hon. A.L. McLACHLAN: I have a question for the minister, in particular in relation to amendment 25. It is my view that the data or information being asked to report on is very basic, and is cast imposing the least administrative burden on the government. I find it hard to believe that the government would not be keeping this data or information, otherwise how could it possibly assess the effect of these amendments on organised crime or the big wigs that it intends to attack in relation to this legislation? My question for the minister is: what information will be kept in relation to the restraining and forfeiture orders by the DPP, the government or the Attorney-General's Department itself?

The Hon. G.E. GAGO: I have been advised that the reason we are opposed to the annual report is not because it is an administrative burden but basically because we believe that it is a report on the system to which we are opposed and we believe will not work, so it is for those reasons we oppose the annual report.

The Hon. S.G. WADE: On behalf of the opposition I indicate disappointment in the minister and the government as a whole.

The Hon. G.E. Gago: A motion of no-confidence, let's have another one!

The CHAIR: Order! The honourable member is on his feet.

The Hon. S.G. WADE: As I said before, the opposition has indicated that we are minded to support the legislation: we sought to improve it using commitments the government itself had made in relation to introducing a review function. This government is so reckless in terms of protecting those who are law-abiding citizens who are unwittingly caught by provisions that are targeted at—I will not use the word 'targeted' because the government is inclined to use dragnet legislation and not provide sufficient protection for law-abiding South Australians. We saw this as an opportunity to enhance the bill. The government has clearly shown that it is not willing to work with the opposition on that. In contrast to the numerous discussions we have had about SACAT, the lack of engagement on this particular bill is galling.

Having said that, we know full well that the government will open this act again, because the government says that it keeps its promises, and it promised in 2014, at the recent election, to amend the legislation to provide that a person can, at the discretion of a court, if I correctly remember the commitment, be deemed unable to own property for five years. So, we will certainly be looking to address the concerns raised by the government in its response today.

Given the fact that we have perhaps less than two hours left in this parliament, I will be proposing to my Liberal colleagues that we save this project for the next round of this legislative process. Unlike the government, we do not believe that we should recklessly override the lawful interests of law-abiding citizens for the sake of a press release. The government may think that not engaging the opposition in this particular bill was a clever thing to do, but be assured we will be watching for the next bill to amend it in a way that makes it even harder for the government to oppose.

The Hon. M.C. PARNELL: What I find remarkable—and I think I have got to my feet before the Hon. Andrew McLachlan—is that we have just been given an indication the Liberal opposition is not going to pursue an amendment where it clearly has the numbers. We have heard what people have said here; it has the numbers to pass, yet my understanding is that the Liberals are so keen to make sure that this draconian legislation gets through that they are shortly to abandon their principles and abandon the amendment. I support the amendment, for the reasons the Hon. Andrew McLachlan gave. I think it is a remarkable situation if, having secured the numbers, the Liberals get cold feet and withdraw the amendment. I just reiterate that the Greens will be supporting both these amendments.

The Hon. A.L. McLACHLAN: On behalf of the Liberal Party, I seek leave to withdraw the amendment.

Leave granted; amendment withdrawn.

The Hon. J.A. DARLEY: I move:

Amendment No 10 [Darley–1]—

New clause, page 11, after line 4—Insert:

24—Review of Act

(1) The Attorney-General must, within 3 years after the commencement of this Act, undertake a review of the amendments to the Criminal Assets Confiscation Act 2005 enacted by this Act.

(2) The Attorney-General must cause a report on the outcome of the review to be tabled in both Houses of Parliament within 12 sitting days after its completion.

Given the angst and division that this bill has created, it seems appropriate that we have a review provision inserted in the bill in order to assess the success or otherwise of the government's proposal in terms of deterrents and combatting our drug epidemic. This is a straightforward amendment and one which we have inserted into a number of bills before. With that, I urge honourable members to support the amendment.

The Hon. G.E. GAGO: The government is happy to support this amendment.

Amendment carried; new clause 24 inserted.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (16:22): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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