Bills

Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 3 July 2014.)

The Hon. J.A. DARLEY (15:34): I rise to speak briefly on the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill 2014. When this bill was debated last year, I indicated that I thought it would be more suitable to postpone further debate until after the High Court challenge in the Emmerson case. Briefly, by way of background, in 2012 the Northern Territory Supreme Court declared Mr Emmerson a drug trafficker. As a result, all his property, the majority of which had been obtained through legitimate means, was forfeited to the Northern Territory under its criminal assets confiscation scheme.

Mr Emmerson challenged the validity of the legislative scheme in the Northern Territory Supreme Court and then the Court of Appeal. The Court of Appeal declared the scheme invalid and this decision was subsequently appealed by the Northern Territory's Attorney-General. Although this government's bill was not identical to the Northern Territory legislation, the similarities between the two meant that it made sense to get some further clarity in relation to questions surrounding the scheme's constitutional validity.

As members would be aware, the High Court handed down its decision in the Emmerson case in April of this year. In a majority ruling, the validity of the Northern Territory scheme, under which the property of a person declared to be a drug trafficker can be forfeited even if that property is not derived from criminal activity, was upheld. The Emmerson case has certainly removed any doubts over the constitutional validity of the scheme proposed by this government, which leaves the question of whether, in fact, this is good law.

Australia now has the highest proportion of recreational drug users in the world. According to the United Nations 2014 World Drug Report, Australia ranks first in the world in the use of ecstasy, third in methamphetamines, fourth in cocaine and seventh in cannabis. Not only is our drug use on the rise with the number of Australians doing drugs continuing to grow, drug-related deaths are also increasing. In an interview with The Daily Telegraph, the President of the Australian Drug Law Reform Foundation, Dr Alex Wodak, stated that the rise in drug use was being matched by an increase in the number of deaths attributed to overdose—more than three each day. These are alarming findings.

The question is: how do we tackle this issue? Do we impose tougher penalties on drug users? Do we focus more on rehabilitation? Do we impose tougher penalties on drug peddlers? Do we just go after the 'Mr Bigs' of the drug world? Do we do all of the above? These are all legitimate questions that we need to ask ourselves. What is clear is that the inglorious title of ranking first amongst the world in terms of our drug usage was not bestowed upon us because we are doing all we can in the war against drugs.

There is absolutely no question that those who wreak havoc on our communities by importing, manufacturing or selling drugs ought to be subjected to harsher penalties. There is absolutely no question that our laws need to be stiffened up so they can deter those at the top of the supply chain. There is absolutely no question that we also need to be looking at more intensive rehabilitation programs for drug addicts to prevent them from developing addictions in the first place and better educating our young people about the associated risks of substance abuse. It is for this reason that I foreshadow that I will be moving amendments to ensure that more funding from the proceeds of confiscated assets is directed towards drug rehabilitation services.

The second point that I wish to talk about focuses on an entirely different aspect altogether, and that is the use of cannabis products for medicinal purposes. The definitions that apply to cannabis products under the Controlled Substances Act are very broad. They cover cannabis, cannabis oil and cannabis resin. The bill in its current form could have hefty ramifications for those using cannabis oil for medicinal purposes which, like it or not, is currently being used right here in Australia to treat sick children and adults alike. It raises the question of whether parents, who as a last resort turn to medical treatment based on medical advice involving cannabis oil in a genuine attempt to help their child, should run the risk of being bankrupted.

On Sunday evening the 60 Minutes program broadcast a story called 'Green Rush' on this very issue. The story covered the progress of a little girl, Charlotte Figi, who suffers from a rare form of epilepsy known as Dravet syndrome, and who is changing the medical marijuana laws across America.

Charlotte's parents explored every possible medical option available to them before resorting to the use of cannabis extract. The results were a resounding success and since then Charlotte's Web, the name given to the strain of marijuana used in Charlotte's treatment, has become widely sought after across the world, especially by the parents of other children with similar illnesses. Charlotte's Web has very low levels of tetrahydrocannabinols, otherwise known as THC, and high levels of cannabidiol, or CBD.

One of the people interviewed during the story was Sunshine Coast mum, Sally White. Sally is one of 8,000 waiting to access Charlotte's Web for her 16-month-old daughter Zahlia. Zahlia has Aicardi syndrome, an extremely rare genetic disorder that occurs almost exclusively in females resulting in developmental delay. Baby Zahlia suffers from all the markers that characterise Aicardi syndrome: she has an absent corpus callosum, the part of the brain which sits between the right and left sides of the brain and allows the right side to communicate with the left; she suffers as many as 40 seizures a day; she has severe brain damage; and she has lesions on her retinas resulting in vision impairment. Most children with Aicardi syndrome do not walk or talk and they also struggle with the most basic of skills such as supporting their heads, crawling and even smiling. It is an unimaginable reality for any child to have to live with.

Because she is in Australia, Sally and other parents in similar positions cannot access cannabis oil legally. She is not advocating that parents take part in illegal activities to access cannabis oil, nor does she want to place her child's health at further risk by exposing her to unregulated treatment. She is, however, willing to fly halfway across the world to a city where cannabis oil is heavily regulated and ensure her daughter has legal access to a drug that could save her life. Faced with the same dilemma, I am sure many of us would do exactly the same, which raises the question of whether or not at the very least we ought to be debating the merits of medicinal cannabis products.

During her interview on the 60 Minutes program, Sally had this to say about Australia's position on the use of cannabis oil for medicinal purposes:

Sometimes I feel like saying to these politicians we'll swap children. You take my baby and watch her seizure all day long and I'll take your healthy kid and run around the park and pretend that life's great and you decide what you're going to do. Are you going to get it illegally or are you going to do everything you can to get it here somehow? Being a politician, they'd do something if it was their kid, but they obviously don't have sick kids because there's no way they'd sit there and not do anything.

As reported by 60 Minutes presenter Michael Usher, America is in the unusual situation where personal anecdotes, rather than science, are changing laws. This is, of course, concerning, but when you consider the quality of life that children like Charlotte Figi had before undergoing treatment involving the use of cannabis oil and that she suffers some 300 seizures a week, it is little wonder that here in Australia desperate families are also hoping those anecdotes will be heard by our lawmakers.

Those American states that have legalised cannabis products for medicinal use have put in place extremely sophisticated monitoring systems and regulatory regimes. For instance, in Colorado each plant is said to be subjected to a seed-to-sale tracking system which enables its every move to be monitored by state officials. There is no question in my mind that in the near future this is a debate that we, as a parliament, will be taking part in.

The question of whether the use of cannabis oil for medicinal purposes ought to be legalised will take centre stage in that debate, as will the need for further research. When that time comes, we will need to exercise caution. In the meantime, however, I do not think all the offences regarding cannabis oil will sit well within the context of the current bill. As such, I foreshadow that I will be moving amendments to address genuine cases involving the use of cannabis oil for medical treatment. With that, I support the second reading of the bill and look forward to its debate.

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) (15:45): I understand that there are no second reading contributions at this point, but there may be some comments made at clause 1. A number of questions and issues were raised during second reading contributions, and I would just like to take this opportunity today to put some information on the record.

This government has made no secret of its tough stance against crime and against serious drug offenders. We have a policy underpinning this bill to two elections and, despite the views of those opposite, the Labor government has won two elections with this bill as part of its policy package. I want in particular to address some of the questions and remarks made by some of the honourable members, particularly those of the Hon. Stephen Wade in his quite substantial contribution.

In relation to the 2010 election policy, the Hon. Stephen Wade has stated that the bill both now and then does not match the 2010 election policy because it allows for confiscation following a first offence. This is not true. I am advised that the 2010 election policy was quite detailed, but it said in general that the legislation would:

…target persistent or high level drug offenders to provide for total confiscation of the property of a 'Declared Drug Trafficker'.

Although there may be a quibble about what 'high level' means, it is clear beyond argument that the policy contemplated confiscation in respect of certain first-time offenders.

In relation to high-level first offenders and Mr Bigs, the Hon. Stephen Wade quoted extensively from a letter from the Bar Association, the general gist of which is that this measure will not catch high-level offenders, but it will catch low-level offenders. First of all, the Bar Association is right about the cannabis plant figures given in the report being wrong. They are wrong. I apologise to the house for this and I take this opportunity to set the record straight. The true amounts are: trafficking amounts, 10 plants; commercial amount, 20 plants; large commercial amount, 100 plants.

What does the Bar Association say? The government has not seen the letter, but here is a quote used by the Hon. Stephen Wade:

To take cannabis offending as an example, a person convicted of trafficking 1 kg or more of pure cannabis will commit a 'commercial drug offence' and become a 'prescribed drug offender'. Yet 1 kg of dried cannabis can be obtained from harvesting only a few cannabis plants (and since cannabis loses about 75% of its weight after drying, if a grower was caught with cannabis after they had just harvested it they are likely to possess more than 1 kg of cannabis from a single plant).

Let's examine this. The Bar Association is saying that a person trafficking between one and two kilograms of pure cannabis is not a commercial drug trafficker but a minor drug trafficker, a lower level offender. Are they serious? Are they saying that someone cultivating, say, 80 cannabis plants is a low-level offender? We surely cannot accept that statement.

I want at this point to inform the council about how these amounts were set. They were set by resolution of the national Intergovernmental Committee on Drugs, on recommendation of an expert subcommittee comprised of national representatives of police, customs, the Australian Crime Commission, the attorneys-general departments. Better yet, the expert committee did not set the amounts on the basis of dosage. Rather, on the basis of a report of the Model Criminal Code Officers Committee, the subcommittee examined expert evidence about patterns of trafficking behaviour, based on real evidence about how much of any given drug a commercial level dealer, for example, typically traded at a time.

These are not random numbers—they are based on real evidence garnered by real experts. The Bar Association appears to be fond of quoting figures with respect to cannabis, but can they seriously suggest that a person trafficking in up to a kilo of cannabis is a low-level offender? I suggest that this council cannot seriously agree with such an assertion.

In relation to the 2014 election promise, the Hon. Stephen Wade correctly points out that the 2014 election promise amounted to a reintroduction of this bill and a further law to prevent the offender from owning property for up to five years. The government has not done that this time around. Why? Well, the majority of the council has resolved in the past that going this far is unfair and unjust. In the Hon. Mark Parnell's words, it is bad law. The Bar Association thinks that confiscating the property of serious drug dealers is inimical to a free society, the rule of law—what nonsense—and is draconian. Let us see if the council will pass this bill before we go further.

As to fines, the Hon. Stephen Wade likens this to a fine and asks why, instead, the government does not simply increase the fine applicable. But he answered the question in his next breath by noting that fines of $500,000 are already provided for. In fact, in some cases a $1 million fine is provided for. It is hard to consider raising these. If the honourable member objects that this measure takes money from the victims of crime, he should remember that the proceeds of the fines go into general revenue.

In relation to how many offenders there will be, the Hon. Stephen Wade quite correctly says that the government does not know how many offenders this measure will apply to. The Attorney-General has tabled in another place what figures are available on the commercial and large commercial offenders, but figures are not kept on recidivist offenders who offended in a period of 10 years, not counting periods spent in custody. There is a guesstimate quoted of proceeds between $8 million to $10 million per year. If the government does not know how many, how could it guess at how much? It is inherently impossible to guess with precise accuracy, even if the number of offenders might be known. The WA DPP said in 2012-13:

There are significant fluctuations in both the number of declarations made and the amounts paid to the account in the given year. This is due to range of factors, including offender arrest rates, the nature and value of property seized and the prevailing economic climate. Given the time lag in selling forfeited property, there will not be a direct link between the number of declarations made in the relevant year and the amount of monies realised.

But that does not mean that one cannot say anything. Other jurisdictions have this law, and it is not as if it is being done for the first time. Western Australia has had it for years. Its DPP publishes figures in his annual report. Their figures between 2009 and 2010 vary between $5.19 million and $10.005 million.

Why pick on drugs? The Bar Association says, 'Why pick on drugs—why not murder, assault and rape?' The answer to that, I would have thought, is blindingly obvious: drug trafficking is a crime committed for profit every time; murder, assault and rape are not. Drug trafficking is about the money, so the government is going to take all the money off them—not just what can be proved from time to time to be profit, but all of the money. The Bar Association says that this is an attack on free enterprise. Well, so it is, but I doubt that this council, even the most strident of free market supporters opposite, will defend drug trafficking as an example of free enterprise.

In relation to issues on victims, the Hon. Stephen Wade spent a considerable part of his contribution on the idea that, and I quote, 'victims will lose'. As the Hon. Attorney-General made clear in another place, victims will not lose from these funds because they never had them. This bill will not, as it was argued, take money from the Victims of Crime Fund. To suggest so is at best misguided and otherwise disingenuous. It will raise new money, which never went into the Victims of Crime Fund, and use it to fund worthwhile ventures in the justice reform area that are in need of funds.

Those funds will go towards a number of worthy initiatives in the justice space. In particular, investment in the justice reform area will mean greater support for victims of crime and greater access to justice. In fact, I note comments made by the shadow attorney-general, the member for Bragg, just last week. On 17 July, the shadow attorney-general was quoted in TheAdvertiser as saying:

Every day you don't get to court costs people's lives because they are not able to get on with things. It's bad administration of justice because witnesses forget what they saw and victims wait longer to move on while civil matters get pushed further into the background.

Well, I agree. The justice resources fund will go some way to allowing these victims their day in court. If the Hon. Stephen Wade really does want to talk about victims though, what about the victims of the drug trade? In his contribution, the Hon. Gerry Kandelaars made the point that this bill, in essence, seeks to bankrupt those who bankrupt our community. It seeks to bankrupt those who peddle drugs and who, by doing so, destroy the fabric of our society one hit at a time.

Drug addiction pervades every corner of our society, and I doubt that that there any of us in this place who has not been affected either directly or indirectly by members around us, and family and friends. It pervades every corner of our society and the government is seeking to cut it off at the source. We should not as members of this council stand in our ivory towers or hide behind academic arguments. Drug trafficking like drug addiction is real. It can affect any family. Many members in this place have children. I am sure that it might not be what we want to hear and it might cut close to the bone but drug addiction could hurt one of our children and, therefore, one of our family, and you just do not know. We in this place should do everything we can to stop the drug trade. We must leave no stone unturned.

In summary, as honourable members are aware, this measure has been debated thoroughly a number of times in this place now but some things have changed. The first thing that has changed is that another jurisdiction, Queensland, has enacted a version of this measure. It did so in the Criminal Proceeds Confiscation (Unexplained Wealth and Serious Drug Offender Confiscation Order) Amendment Act 2013. Another jurisdiction has done what is asserted to be an appalling and unthinkable thing. The second thing that has changed is that the High Court has upheld the constitutional validity of the measure of Emmerson v DPP (2014) HCA 13 by an overwhelming majority of six to one. The majority said this:

The statutory scheme in question exemplifies the acceptance by legislatures in Australia and elsewhere of the utility of the restraint and forfeiture of property, not only as a strong and drastic sanction vindicating a law and encouraging its observance, but also as a means of depriving criminals of profits and preventing the accumulation of significant assets by those involved in criminal activity, particularly in relation to drug offences.

Forfeiture or confiscation of property, in connection with the commission of serious crime, has a long history in English law. Until its abolition by statute in 1870, a felon incurred general forfeiture of property, a sanction stretching back to medieval times. Felon forfeiture provided Crown revenue and constituted the subject matter, at certain times, of Crown patronage.

In distinguishing between a felon's forfeiture of land (strictly, escheat of land) a consequence of attainder following a judgment of death or outlawry, and the forfeiture of goods and chattels, a consequence of conviction and sentence, Blackstone noted the severe deterrent effect of forfeiture as a punishment for serious crime because it affected posterity as well as the individual offender.

I continue with the quote:

Modern civil forfeiture laws for confiscating the proceeds of, or profits from, crime go beyond the condemnation of goods used in, or derived from, crime. Many are designed expressly to render a person's pursuit of certain crimes unprofitable in the economic sense. No single precept drawn from historical examples of forfeiture could be said to inform modern civil forfeiture laws. What the historical examples show, however, is that overlapping rationales underpinning forfeiture as a criminal or civil sanction, which include both strong deterrence and the protection of society, are not especially novel. Protection of the public is a familiar factor in judicial decision-making in sentencing after the determination of criminal guilt. In the context of terrorism, it has been said that the protection of the public is a permissible legislative purpose, not alien to adjudicative processes.

The bill was supported in the other place by the new shadow attorney-general, and the government looks forward to a bipartisan approach in this place as well.

Bill read a second time.