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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-03-24 Daily Xml
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Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 17 March 2015.)

The Hon. A.L. McLACHLAN (17:37): I rise to speak on the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill. The bill is in all respects identical to the criminal assets confiscation bill which was introduced last year but which lapsed due to the prorogation of the last parliament.

This is now the third time the government has tried to pass the bill, which was intended to implement the serious crime policy that Labor took to the 2010 election. The bill was first introduced in the 52nd parliament, but it failed to pass because it went further than Labor's election policy, in particular in that it proposed to allow for the confiscation of assets on a first offence and diverted confiscated funds away from the Victims of Crime Fund.

Then in the lead-up to the 2014 election, Labor stated that it would continue to pursue changes to the criminal asset confiscation regime. Labor also stated in its proposed policy pronouncement that it intended to grant the courts the power to prevent a prescribed drug offender from owning property for up to five years. This policy was ultimately abandoned and did not appear in either the 2014 or the 2015 bill.

I will now deal with the bill before us. Under the proposal, if an offender commits a single commercial drug offence or three or more specified drug offences within a 10-year period, they will be liable to be declared a prescribed drug offender and subject to the confiscation regime.

The bill changes the confiscation regime that currently operates in South Australia in that there is a lack of nexus between the offence and the assets to be confiscated. The Liberal Party has consistently supported the confiscation of assets where they are the proceeds of crime or the instruments of crime, even if lawfully acquired or where they represent unexplained wealth. To this end, the Liberal Party has on the last two occasions (and again with the 2015 bill), supported its passage in the House of Assembly.

However, there are certain elements of the bill that have continued to cause the opposition concern and which were again outlined by the shadow attorney-general, the member for Bragg in the other place, during the second reading debate last month. Nevertheless, the opposition has also indicated that if certain amendments are passed then it would be willing to support the bill. Late last year the opposition engaged in consultation with the government and the crossbenchers regarding our concerns and some proposed amendments. After the bill came up to the Legislative Council for a second time our concerns with the bill largely came down to four key areas. It is in relation to those four areas which were previously identified as needing some amendment that I have filed a set of amendments on behalf of the opposition.

The first amendment we propose is to provide for some form of judicial review against any Director of Public Prosecutions' discretion where it is in the interests of justice to do so. The second is to require that the Director of Public Prosecutions publish confiscation guidelines that are similar to the prosecutorial guidelines that are currently published. The third is to require that proceeds of confiscation be paid into the Victims of Crime Fund. Under the current proposal, the proceeds of the asset confiscation would not be paid to the Victims of Crime Fund but rather be redirected to fund government services through a justice resources fund. It seems that the government wants to persist in taking away money from victims of crime rather than giving priority to them.

On this particular amendment the opposition has also included a further amendment to require that half the proceeds be paid into a drug rehabilitation fund. This amendment was pursued by the Hon. John Darley in respect to the 2014 bill and it is our view that it is sensible. It would be unconscionable for us not to apply any of this money into drug rehabilitation when outpatient drug and alcohol services at the Glenside Hospital, that the government previously proposed, will now probably never exist. It is now clear that we do not have any extant commitment from the government that it will provide any extra drug and alcohol services to deal with the current need.

The member for Bragg in the other place also raised an important consideration on this issue and that is if the money was to go into general revenue it could lead to the potential for the Director of Public Prosecutions to be in a conflict of interest situation where they are confiscating assets and also asking for more money to run their own department. The amendment we are pursuing would help to ensure the independence of the Director of Public Prosecutions and, importantly, ensure that the office does not become a debt collector for the government.

I turn now to the fourth key area in which we are seeking amendment, and that is to have some form of review in reporting. To this end the opposition is proposing that an annual report be prepared and provided to parliament on the operation of the new confiscation provisions and that a review of the legislation be conducted after three years of its operation. There are many instances where a short report is required to be provided to parliament, for example, in respect of the surveillance operations of covert police.

If the bill is passed it has the potential, upon mature reflection, to be considered an unhappy reform, and the opposition is therefore of the view that it is both necessary and prudent to have this requirement in place. Last year, after consultation, the opposition came up with a formula of review which we believe is workable and would go to meeting the opposition's policy concerns. I note that the Hon. John Darley has also again moved amendments to the bill identical to those he moved in the last session of parliament. Some of these have also been included in the opposition's amendments which have been filed.

It is disappointing to see that there has been no movement from the government at all since the last bill was debated in respect of proposed amendments to the bill. When we debated this last year there was significant support for the opposition's amendments in the chamber. The Liberal Party has always been keen to ensure the safety of its citizens. It acknowledges that the drug trade presents a considerable risk to the community and is willing, therefore, to support the substantive parts of the bill. However, the confiscation of assets unrelated to criminal activity is a serious diminution of the rights of the citizen. To mitigate any adverse consequences of a confiscation order, in our view, it must be subject to review. I look forward to the committee stages.

Debate adjourned on motion of Hon. G.A. Kandelaars.

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