Bills

Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill

Committee Stage

In committee.

(Continued from 28 October 2014.)

Clause 7 passed.

Clause 8 passed.

Clause 9.

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

Amendment No 5 [Darley–1]—

Page 5, line 35 [clause 9, inserted subparagraph (ia)(B)]—Delete 'would not' and substitute 'could not'

This is a consequential amendment.

The Hon. S.G. WADE: We agree this is a consequential amendment but it is consequential on the fact that both the government and the opposition opposed it, so we will continue to oppose it.

Amendment negatived.

The CHAIR: Is it the same with the next one, amendment No. 6?

The Hon. J.A. DARLEY: Consequential, Mr Chair.

Clause passed.

Clauses 10 to 19 passed.

Clause 20.

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

Amendment No 1 [Wade–1]—

Clause 20—This clause will be opposed

This is a relatively simple clause but if the committee is agreeable I would suggest it be a test clause for the related amendments in relation to the issue of whether or not the funds from the confiscation of assets under this act should go to the Victims of Crime Fund or to the new Justice Resources Fund. By virtue of this amendment and related amendments, the money would go to the proposed Justice Resources Fund. We see that as primarily a government response to its own budget woes. It has been a common feature of the earlier versions of this bill.

I would underscore to members too that it is not just, if you like, diversion of the new assets confiscated, but our understanding of the impact of the legislation would be that in relation to an offender who is liable to have assets confiscated under this legislation not only would those assets, if you like the non-crime-related assets, be disposed of to the benefit of the Justice Resources Fund but also the assets that would have otherwise gone to the Victims of Crime Fund; in other words, assets which are either the instruments of crime or the proceeds of crime.

We have continually found it impossible to get information from the government as to that second element, but in any event we do not believe that there is any justification for taking money away from the victims of crime to prop up this government's budget problems. We are attracted to the proposal by the Hon. John Darley in relation to drug rehabilitation because that is a clear strategy to reduce future victims, but to let Treasury get a hold of the money without any relationship to reducing crime, which is the current rationale behind this regime, not just in this jurisdiction but, on my understanding, at the commonwealth level as well, we see no justification to change the established practice of the act.

The Hon. G.E. GAGO: The government opposes this amendment, and we are happy to treat this as a test for clauses 20 and 22. We also intend to oppose those clauses, and to amend clause 21 to remove the justice resources fund proposed by the government because of what we see as some misguided belief that victims will lose out. As noted in my second reading reply, the Attorney-General made it clear in another place that victims will not lose from these funds because they simply never had them. This bill will raise new money that never went into the Victims of Crime Fund, and that can be used to fund a number of really worthy initiatives in the justice reform area, such as the provision of courts infrastructure, services, programs and facilities for dealing with things like drug and alcohol related crime.

These are things that did not exist before, and it is money that we did not have access to before. This money should not be limited to just providing funding for drug rehabilitation programs, as proposed by the honourable member. It will be invested in the justice reform area, which will mean greater support to victims of crime and greater access to justice. Therefore, and as I said, the government opposes this amendment and related amendments proposed by the honourable member.

The Hon. S.G. WADE: I am going to focus on questions, because I appreciate that other members might want to express their view on the policy before the minister and I have any further discussion on that. If I understood the minister's comments correctly, she was suggesting that this was new money. Does that suggest that the government is of the view that proceeds of crime and instruments of crime proceeds of people who are caught by this legislation would continue to go to the Victims of Crime Fund, and only the non-instruments of crime, non-proceeds of crime element would go to the justice resource fund? To me that is the only way the minister's statement could be accurate.

The Hon. G.E. GAGO: We are happy to take other points of view on this, while we are waiting on advice. It will help move things along a bit.

The Hon. M.C. PARNELL: I will just take this opportunity to put the Greens' position on the record. The first thing I will say is that the list of initiatives in the government's proposed justice resources fund are all noble initiatives, they are all projects and causes and areas of expenditure that are meritorious and worthy; however, whilst spending money on drug and alcohol related services, on fixing up the courts infrastructure, are all worthy causes, the Greens cannot accept that matters that should be funded out of general revenue are now going to be funded by effectively stealing the honestly-gained property of people who have committed certain offences.

I will just put it on the record again: the Greens support the confiscation of the proceeds of crime, we even support taking it where you cannot necessarily prove that it was property gained by criminal activity but it is unexplained wealth, we support taking that as well. However, we cannot support the tenet of this bill, which is to take people's honestly and legitimately acquired property. Having said that, the argument being raised at the moment, I guess, is about where this money should be spent. We are inclined to support the Liberal model regarding where the money is to go, but, as I said, whilst we are supporting the amendment we will be voting against the entire bill.

The Hon. G.E. GAGO: I have been advised that if the moneys are not separated out then it is true to say that that money that might have been proceeds of crime will go into the justice resources fund rather than Victims of Crime. However, it will raise new money, because we are able to confiscate more assets.

The Hon. S.G. WADE: I understand that that answer means that practically the money will all go into the justice resources fund. In terms of the minister's other comment, which was, I think, a reference to the Attorney-General's comments in the second reading in another place, that victims will benefit from the justice resources fund through the provision of facilities and so forth, I ask the minister, is there anything in this bill that means that a project needs to benefit victims? Is there any requirement for there to be a nexus? I cannot see anything. I am expecting to see it in proposed section 209A(5), which is in clause 22.

The Hon. G.E. GAGO: Section 209A(5).

The Hon. S.G. WADE: Yes, (5)(a)(b)(c). It does not mention victims, though, does it? If you are referring me to (5)(a), there is no nexus to victims. There is nothing to say that anything from the justice resources fund would create any benefit for victims. I certainly appreciate that there is a lot of, shall we say, courts infrastructure expenditure, for example, victim witness suites and so forth, that would be of huge benefit to victims, but there is nothing in this bill that says that it is going to go anywhere near victims.

The Hon. G.E. GAGO: I do not want to labour the point, but it is related through the funding for justice reforms initiatives. It stands to reason that if you are upgrading court facilities and such like victims are going to benefit from that.

The Hon. S.G. WADE: I am not going to labour the point either. I will just make a point and I will go no further. Justice reform initiatives, for example, can be completely civil. They might have no benefit to victims. I just stress that I do not believe that there is any nexus between the justice resources funds and victims. This is clearly a transfer of assets away from victims.

The council divided on the clause:

Ayes 6

Noes 12

Majority 6

Clause thus negatived.

Clause 21.

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

Amendment No 1 [Darley–2]—

Page 9, lines 29 to 31—Delete clause 21 and substitute:

21—Amendment of section 209—Credits to the Victims of Crime Fund

(1) Section 209(1)—after 'Subject to' insert 'subsection (1a) and'

(2) Section 209—after subsection (1) insert:

(1a) The Attorney-General must ensure that in each financial year an amount equal to 50% of the proceeds of confiscated assets of prescribed drug offenders for the preceding financial year is, instead of being paid into the Victims of Crime Fund under subsection (1), applied as additional government funding for drug rehabilitation programs (and such money may be applied without further appropriation than this subsection).

This amendment requires that the Attorney-General ensure that a minimum of 50 per cent of the proceeds of confiscated assets of prescribed drug offenders be directed towards drug rehabilitation programs, with the remaining 50 per cent going into the Victims of Crime Fund, as opposed to the proposed justice resource fund.

At the outset I thank the Hon. Stephen Wade, on behalf of the opposition, for his party's support for this very important amendment, and I commend the opposition for its very strong stance on the rights of victims with respect to this bill. Like the opposition, I believe it is most appropriate that the proceeds of assets seized go towards victims of crime, and as such I do not support the government's proposal to establish a new fund. Likewise, I also believe that more money needs to be directed towards drug rehabilitation programs, and this amendment really brings me to my second concern regarding this bill, namely, the lack of adequate funding directed towards such programs.

Members may recall that in the lead up to the last election one of the policies that my team focused on was the need to adopt the Swedish mandatory rehabilitation program and a zero tolerance approach to illicit drugs, which has slashed drug use in that country, as well as the need to give third parties, especially parents of drug-addicted children, the right to seek intervention in terms of that treatment.

For those members not familiar with it, the Swedish approach focused very much on zero tolerance, prevention, treatment and control. Sweden's overarching goal, and the basis of that country's drug policy, is a society free from illegal drugs. One of the key measures of Sweden's drug policy is the courts' powers to divert users into detoxification and rehabilitation. The mere suspicion of drug use by police is enough to warrant a urine test and a subsequent referral to rehabilitation.

The country has a very small number of syringe exchange programs, and its users are required by law to enter into detoxification and rehabilitation programs. If you are caught with drugs you will face prosecution, no ifs or buts about it. The aim is to reduce both the supply of and demand for illegal drugs. It is widely acknowledged that in order to be effective in combating supply of drugs it is crucial to focus on demand.

This vision is not unique to Sweden alone; it is also shared by many neighbouring Nordic countries. Obviously having a drug free society is a very tall order for any country, but there is no question that Sweden has taken a very strong stance on the issue of drugs, and when you compare its drug abuse figures with those of other countries, particularly Australia, there is no question that it has paid off considerably.

Sweden's success is attributable in large part to a relatively high level of government expenditure and policy focus. In 2007, the United Nations Office on Drugs and Crime published a report entitled Sweden's Successful Drug Policy: a review of the evidence. According to that report, Sweden's drug-related expenditure accounts for 0.47 per cent of its gross domestic product. Australian drug budget results show that Australia spends 0.13 per cent of its GDP on illicit drugs and drug-related policies.

In 2003, Sweden's lifetime prevalence of drug use among 15 to 16 year olds was 8 per cent, compared to 22 per cent in Europe. By 2006 Sweden's teenage drug use had fallen to 6 per cent. Between 2002 and 2004, the monthly prevalence of cannabis use among 15 to 24 year olds was 3 per cent in Sweden, compared to 11 per cent in Europe and 17 per cent in the UK. For other drugs, Sweden sat at 1 per cent compared to 3 per cent in Europe and 8 per cent in the UK.

For 15 to 64 year olds the annual prevalence of drug use in Sweden was 2.2 per cent for cannabis, compared to 7.4 per cent for West and Central Europe; 0.2 per cent for amphetamines, compared to 0.7 per cent; 0.2 per cent for cocaine, compared to 1.1 per cent; 0.4 per cent for ecstasy, compared to 0.9 per cent; and 0.1 per cent for other opiates, compared to 0.5 per cent.

While other European countries' illicit drug use continues to increase, Sweden's continues to decrease. Like Australia, Sweden has a significant number of amphetamine users among its problem drug use population, yet their prevalence rates are still a fraction of ours. We rank third in the world in terms of our amphetamine use. According to the UN report, a review of fluctuations in abuse rates also shows that in Sweden periods of low drug use abuse were associated with times when the drug problem was regarded as a priority, and changes in the number of heavy drug abusers over the past decades coincides with budget changes. For instance, between 1992 and 2001, at a time when funding cuts hampered access to treatment facilities, heavy drug abuse increased.

David Perrin, Executive Officer of the Drug Advisory Council of Australia, and national President of the Australian Family Association, recently wrote an opinion piece which was published in the News Weekly on the findings of the report. He states this about Sweden:

Sweden targets its drug policies at teenagers to stop them trying drugs and, if they get hooked, to get them off drugs quickly and permanently. Sweden's experience is that if a young person has not taken an illicit drug by age 20, he or she is highly unlikely to use illicit drugs later in life. Australia has high levels of illicit drug use, similar to most of Europe. We have adopted permissive 'harm minimisation' policies which have led to high levels of demand for illicit drugs, with new drugs such as ice—methamphetamines, coming on the scene.

Sweden has succeeded in its drug policy because it has reduced the number of drug-users, and hence the demand for illicit drugs. This is a lesson Australia has yet to learn.

Sweden is not on a known drug route, so drug crime syndicates avoid trafficking to Sweden because of the difficulty involved. High prices, few outlets and strong drug policies deter the supply of drugs.

Like Sweden, Australia is not on a known drug supply route; but we have weak policies, low drug prices and a permissive culture that accepts the use of drugs.

None of the strong policies of Sweden, as outlined here, are present in Australia, so like Europe, we continue to suffer high drug usage.

These are quite telling statements from someone in the know, and they support the argument that the Swedish example demonstrates that when drug use is tackled head-on with strong, decisive and targeted policies, it can make a huge difference.

Turning back to my amendment: at the very least, we have to ensure that a decent proportion of the money that is generated from those assets that are seized from prescribed drug offenders goes towards targeted funding for drug rehabilitation programs. As outlined in my second reading contribution, 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.

Drug-related deaths are increasing at an alarming rate, so much so that the rise in drug use is being matched by an increase in the number of deaths attributed to overdose: more than three a day. Just this week, 60 Minutes aired a program on Silk Road, an underworld online hub where you can buy any drug conceivable. Australia ranks third behind the UK and America in terms of the drug deals being made from that website, drug deals that equate to more than $1.2 billion, drug deals that are being delivered via the post.

These are alarming figures, and it is absolutely extraordinary that this is happening right under our noses. Just as alarming, however, is the fact that the message about the dangers of drugs and the ramifications of drug supply and use is simply not getting through, especially to young people.

We need to ensure that we are doing our level best to tackle the issue of the demand for drugs. We need to be doing more to educate our kids and ensure they do not turn to drugs in the first instance. We need to be doing more to get drug addicts clean and keep them out of gaol, and we need to be doing more to help the families of those affected by drugs. This is not about being soft on drugs; it is about a holistic and targeted approach backed by good policy.

Yes, the Mr Bigs of our community need to know that the supply of illicit drugs will not be tolerated, and hefty penalties will hopefully go some way towards achieving that goal. One of my other amendments, which requires there to be a review of the provisions of the bill after three years, is aimed at determining that question. But, as I said during my second reading contribution, there is no point in locking up those who peddle their drugs for a year or two hoping that they will be released back into the community reformed persons. That is not going to happen. For one, our prison systems do not have the resources to provide that level of rehabilitation.

I am not asking for mandatory drug rehabilitation, even through I do believe there are merits to that sort of treatment that are worthy of further exploration. What I am asking for is that we do more to break the cycle of illicit drugs, which is almost always inevitably linked to other crimes.

There is no question that Sweden's drug policy is harsh; it is the most widely debated and examined policy in the whole of Europe. Critics argue that the policy is unrealistic and impractical, but the proof is in the pudding. In Sweden, the zero-tolerance approach to drugs, combined with mandatory rehabilitation or the threat thereof , has virtually eliminated what could otherwise have been a major social problem. Let us take a look at that country's model and try to learn what we can do better, and do it.

I want to put on the record some figures that I came cross in a very recent report of the University of New South Wales Drug and Alcohol Research Centre, entitled, 'Government drug policy and expenditure in Australia—2009-10'. The report forms part of the Drug Policy Modelling Program, the aim of which is to create valuable new drug policy insights, ideas and interventions that will allow Australia to respond with alacrity and success to illicit drug use. It actually provides a lot of valuable information, for those who are interested.

According to the report, in 2009-10, approximately 2,827 out of a total of 14,409 adjudicated defendants across Australia's higher courts had illicit drugs as the principal offence. This amounts to a proportion of 19.6 per cent of defendants having an illicit drug-related offence. In 2008-09 the total net expenditure of those courts was $289.5 million. This includes court administration, salary and non-salary items relating to court accommodation, support for the judiciary, court and probate registries, and sheriff's and bailiffs' offices.

In terms of matters heard by the magistrates and children's courts, in 2009-10 there were 32,468 defendants in magistrates courts of 545,658 defendants whose principal offence related to illicit drugs. Based on this proportion, some 6 per cent of magistrates courts activity was deemed to be illicit-drug specific. In the same period there were 821 adjudicated cases in the children's courts, out of 33,469 cases, or 2.5 per cent. Based on cases, the average proportion of illicit drug-related activity in these courts was 5.74 per cent.

The magistrates' courts expenditure that could be regarded as illicit drug specific was calculated to be $21.7 million out of a total of $358.6 million in expenditure. Those figures do not take into account the fact that many of the other offences that are adjudicated are indirectly linked to illicit drugs. I think it would be interesting to see what the difference in those figures would be if those factors were taken into account.

The report also provided estimated drug expenditure figures for all jurisdictions. According to the figures provided, law enforcement and interdiction accounted for 60 per cent of total drug expenditure; prevention accounted for 9 per cent; treatment accounted for 21 per cent; harm reduction accounted for 2 per cent; and then there was a further 1 per cent that accounted for other related expenditure.

What is overwhelmingly clear from these figures is that most of the money put aside by both the state and federal governments for drugs actually gets used for law enforcement. There is no question that law enforcement plays a critical role in this area, and our police and customs officers in particular provide an invaluable service in that regard. What strikes me, though, is that prevention and treatment only account for about one-third of the total drug expenditure. It is this area that I think warrants further attention. With that, I urge all honourable members to support this amendment.

The Hon. S.G. WADE: On behalf of the opposition I indicate that we will be supporting this amendment. I certainly thank the Hon. John Darley for putting on the record a lot of information about drug rehabilitation programs, and in supporting the amendment we notice that it is broad and that it does not prescribe the form of programs that would be involved. Some of them may be the ones that the Hon. John Darley referred to but some of the programs that could be funded under this amendment may be of other forms.

The Hon. G.E. GAGO: The government rises to oppose this amendment and I outlined my reasons for that in relation to the previous amendment.

The Hon. M.C. PARNELL: The Greens will be supporting the amendment for the reasons that we outlined earlier.

Amendment carried; clause as amendment passed.

Clause 22.

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

Amendment No 3 [Wade–1]—

Clause 22—This clause will be opposed

I move the amendment standing in my name, which is basically opposing the clause.

The Hon. G.E. GAGO: The government opposes this amendment for the reasons already outlined.

The Hon. S.G. WADE: Perhaps I should have clarified, I see this as consequential to the earlier series and I presume the government does also.

Clause negatived.

Clause 23 passed.

New clause 24.

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

Amendment No 4 [Wade–1]—

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

24—Insertion of section 225A

After section 225 insert:

225A—Reviews relating to prescribed drug offender assets

(1) If the DPP decides to apply for a restraining order or a confiscation order in relation to property that is owned by or subject to the effective control of—

(a) a prescribed drug offender; or

(b) a person who has been charged with, or is suspected on reasonable grounds of having committed, an offence that will, if he or she is convicted of the offence, result in him or her becoming a prescribed drug offender,

a person who claims an interest in the property may apply to the Tribunal under section 34 of the South Australian Civil and Administrative Tribunal Act 2013 for review of the decision to make the application.

(2) Subject to subsection (3), an application must be made within 1 month of the person being given notice of the application or, if no such notice was given, within 1 month of the DPP making the application.

(3) If the reasons of the DPP are not given in writing at the time of making the decision and the applicant (within the period referred to in subsection (2)) requires the DPP to state the reasons in writing, the time for commencing proceedings before the Tribunal runs from the time at which the applicant receives the written statement of those reasons.

(4) On a review, the Tribunal must vary or set aside the decision of the DPP if satisfied that it is in the interests of justice to do so.

(5) In this section—

Tribunal means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013.

25—Insertion of sections 229A and 229B

After section 229 insert:

229A—Confiscation guidelines relating to prescribed drug offenders

Property may not be the subject of an application under this Act on the basis that the property is owned by or subject to the effective control of—

(a) a prescribed drug offender; or

(b) a person who has been charged with, or is suspected on reasonable grounds of having committed, an offence that will, if he or she is convicted of the offence, result in him or her becoming a prescribed drug offender,

unless the DPP has published in the Gazette guidelines setting out policies applied by the DPP in relation to the making of such applications.

229B—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 this Act during the financial year ending on the preceding 30 June in relation to property owned by or subject to the effective control of—

(a) prescribed drug offenders; and

(b) 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.

(2) 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.

The committee would have noticed that the government has not supported any amendments thus far. I have had earlier indications that the government is not intending to support any amendments, so I presume they will not be supporting these either. At clause 1, I indicated that the Liberal Party has decided to support this bill. The Legislative Council has agreed to a set of amendments which, in its collective view, improved the bill, some of them put by the Hon. John Darley and some put by myself on behalf of the Liberal Party.

I am disappointed the government has not seen fit to support any of the amendments up to this stage, but I appreciate that it is unusual for the government to accept all opposition amendments at the Legislative Council committee stage. The government's first response is often to say no and to leave negotiations to between-the-house discussions.

I reiterate that in moving the amendments I have and the amendments I am about to move, the opposition would want to have discussions with the government between the houses to explore opportunities for mutual agreeable amendments to the bill. That is a process that is already underway on the SACAT bill. In that case the government opposed Liberal amendments to the SACAT bill but we have already had very constructive discussions with the government and I fully expect that on those amendments we can find common ground.

The opposition indicates its willingness to do the same on this bill. We look forward to discussions with the government before the House of Assembly considers the Legislative Council amendments so that we can explore common ground. So, I move amendment No. 4 [Wade-1] standing in my name. It has three elements, and I will refer to each of them. The first is a proposed section 225A, which relates to reviews relating to prescribed drug offender assets.

There has been substantial concern that one of the impacts of this new genre of asset confiscation legislation is that innocent third parties might be adversely affected. We submit to the committee and to the government that this clause is a sensible way of ameliorating that risk. In our view it also reflects the 2014 ALP policy, which talks about extending the scope of the confiscation power and making it subject to judicial review. The Liberal amendment is, in that sense, consistent with Labor policy.

The second element is that we propose a new section 229A, which asks the DPP to publish confiscation guidelines. In that we are envisaging something similar to the prosecutorial guidelines or polices that the DPP publishes. We think it is appropriate for a set of guidelines to be published, so that where the DPP is confiscating an asset which may have been illegally acquired people understand the processes that are being gone through.

The third element is a new proposed section 229B, which suggests an annual report in relation to these new provisions. As is an increasing tendency in this council, we look for both an increase in review of the effect of the legislation that we pass through this place and also more regular reporting. So we have proposed a new section 229B in that context. Those are the three elements of the amendment I have moved.

The Hon. M.C. PARNELL: I jumped up before the minister just to ask a question of the mover. In relation to the proposed insertion of the new section 225A, which is the review clause, the amendment the honourable member proposes is that to be able to go to the tribunal and ask them to set aside or vary the decision of the DPP you have to be 'a person who claims an interest in the property'.

My question is whether that would include the spouse of a person in relation to a property that may have been held only in the name of the offender, the children of the offender, who do not appear on the title, or maybe the aged parent of the offender, who might be living in the house. So my question is: what category of people does the honourable member think will be covered by this, and is he referring to (and it is a long time since I did trust law) some form of trust where a person may, for example, have an interest in property that is not recorded or noted anywhere, their interest being that they live in house that the DPP wants to confiscate?

The Hon. S.G. WADE: The answer is that I would be giving only a lay opinion, and I do not think that is the standard required. I seek the indulgence of the house: I did not think that parliamentary counsel was with us but they are, so I will just consult with them.

As always, I am indebted to the advice of parliamentary counsel. It may well be that an innocent third party, such as a spouse, may not come within that term, but a person who comes within that term—for example, the husband of the spouse who is going to suffer—would come within that term. It may well be that an affected spouse would need to rely on, if you like, the person with the primary interest, to initiate the action, but my understanding is that once the action is initiated under subsection 1, then matters that could be considered by the tribunal under subsection (4), that is the interests of justice, could include justice in terms of the impact on innocent third parties such as a wife.

Let's hasten to add, so I am not seen as being sexist, wives are not always innocent. It may be that in the interests of justice the court says, 'I am sorry, you are part of the scheme.' That is my understanding of the impact of the amendment as proposed. Again, it may well be an issue that could be explored with the government in terms of alternative amendments in the other place.

The Hon. G.E. GAGO: The government rises to oppose this amendment, which inserts two new clauses into the bill. New clause 24 proposes to insert a new section into the act providing for reviews related to prescribed drug offender assets. This provision is unnecessary and serves no useful purpose. There is already a statutory right of appeal against any order for confiscation made by the court. The court hearing any application also, as the High Court made clear in a recent appeal from the Northern Territory, has ample power to prevent any abuse of its process.

There is nothing to suggest the DPP is at present misusing its powers to seek confiscation. Not only does this new provision undermine the practical effectiveness of the bill, but it has a more fundamental objection. The DPP is an independent statutory office holder. It is an issue entirely for the DPP of the day how he or she chooses to exercise his or her discretion. It is a fundamental longstanding premise of constitutional administrative law that the courts will not stray into or interfere with the exercise of prosecutorial discretion.

There are strong reasons of policy and practice for this proposition. Indeed, the High Court of Australia has repeatedly held that decisions of the DPP in the exercise of prosecutorial discretion are immune from judicial review. This is set out by the High Court in a leading case called Maxwell v R (1996) 184 CLR 501. As Justices Gummo and Gaudron observed:

It ought now to be accepted, in our view, that certain decisions involved in the prosecution process are of their nature insusceptible of judicial review. The integrity of the judicial process, particularly its independence and impartiality and the public perception thereof, would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.

In brief, prosecutors prosecute and judges judge. It is part of the separation of powers. The DPP seemingly cannot be compelled to provide reasons for prosecutorial decision. You cannot simply import notions of administrative law as this amendment seeks to do into somewhere it plainly does not belong. This amendment is ill-conceived and frankly unworkable and will involve the South Australian Civil and Administrative Tribunal trespassing on issues better left, by strong reasons of policy and practice, to the DPP.

Clause 25 proposes to insert two new sections into the act relating to the publication of confiscation guidelines by the DPP and the preparation of an annual report by the Attorney-General with respect to prescribed drug offenders. I will deal with each of those in turn. The new section 229A is ill-conceived and an inappropriate amendment. The bill already sets out the powers of the DPP and the underlying principles. It is unnecessary for the DPP to have to publish written guidelines as to how it exercises its powers. This amendment again highlights an ignorance of constitutional operations and the working of the DPP. It is for the DPP—and the DPP alone—as to how it wishes to exercise its powers and discretions.

You cannot frustrate the exercise of prosecutorial discretion by importing notions of administrative law into the workings and operation of the DPP. The proposed new section 229B requires the Attorney-General to report to the parliament annually on the operation of the act in relation to property owned by or subject to the effective control of prescribed drug offenders and persons who will, if convicted, become prescribed drug offenders.

I would urge the council to oppose this amendment. Such a report is unnecessary and, indeed, I wonder if the Hon. Stephen Wade realises how much work this amendment would require. In the government's view the minimal value offered by such a report does not justify the considerable amount of work and the vast resources that would invariably be required to investigate and identify all of the property held by these offenders and report on it to parliament.

Furthermore, it would require the government to assess and then publish in parliament the assets of people who are yet to be convicted of an offence and against whom an application for forfeiture may never be brought. The opposition should stop hiding behind these excuses to oppose this bill. If they are soft on crime, which they are, they should just say so and they should say that they oppose the bill because it is too tough on drug traffickers.

The Hon. S.G. WADE: On the last point, I am sorry the minister was not able to listen to my earlier comments because I have repeatedly said that the opposition is wanting to support this legislation.

In terms of the first clause proposed, 225A, I differ from the minister in the way she characterises the DPP's power in this case. I do not see it as the normal prosecution function of the DPP. These are more like civil confiscation orders.

In any event, in relation to the second matter of the confiscation guidelines, to suggest that it is somehow offensive to constitutional law that the DPP would be operating in accord with guidelines raises the issue of what the minister thinks the DPP is doing when he publishes and acts in accordance with his prosecution policy which is even more fundamental to his or her constitutional role.

In terms of the animated rejection of the annual report, the opposition is more than happy to look at ways of focusing relevant information that the parliament and the community might need, and I just reiterate my earlier comments that the opposition is happy to work with the government.

Also, I was disappointed the minister was trying to personalise this as my ideas. Let's be clear. I am no longer the shadow Attorney-General, I am the shadow minister for health. These proposals are put by me as the shadow minister representing the shadow Attorney-General in this place and they are the decisions of the Liberal Party party room.

The Hon. G.E. GAGO: I have been advised that at paragraph 63, 64 and 67, six judges of the High Court in Emmerson accepted the arguments of the Northern Territory and South Australian Solicitors-General that the DPP's role to confiscate was similar to other prosecutorial functions of the DPP and to be discharged by the DPP with the traditional fairness of the DPP role. It is wrong and misconceived to import notions of administrative law into the traditional and independent exercise by the DPP of his or her statutory discretion. There is already an express power of appeal against any confiscation order in section 226 of the Criminal Assets Confiscation Act.

The Hon. Mr Stephen Wade raises the position of innocent third parties in relation to that issue. The Criminal Assets Confiscation Act already has protections and powers of appeal for third parties whose interests are offended under the act.

The Hon. M.C. PARNELL: Just for the record, the Greens will support the Liberal amendments on the grounds that they make an awful piece of legislation marginally less awful.

The Hon. J.A. DARLEY: I indicate my support for the opposition's amendments.

The Hon. S.G. WADE: In terms of where the council might go from here, I suggest that the government has two options: we can either report progress and the opposition can consider the comments the government has made in terms of criticisms of our amendments with regard to the High Court judgement in Emmerson. I am not the shadow Attorney-General, and these are not decisions for me alone. Alternatively, we can progress and discuss these issues between the houses, and the alternative amendments that the government may choose to offer in the House of Assembly can address these issues.

The Hon. G.E. GAGO: I have received further advice. It would be wise at this point to report progress so that the government can further consider the comments the Hon. Steve Wade has made. We hope to constructively resolve some of these differences and move forward. At this point I suggest that we report progress.

Progress reported; committee to sit again.