Criminal Assets Confiscation (Miscellaneous) Amendment Bill

Second Reading

I thank the members for their contributions to this debate and, in particular, acknowledge the support of the opposition representative to the bill. The matters raised by the opposition require some comment and I will attempt to identify some of the aspects without traversing all the debate in relation to confiscation law.

I think it is fair to say that there have been three stages of confiscation law since we have been here. The act that we are currently dealing with and purporting to propose amendments to is the Criminal Assets Act Confiscation Act 2005. I think it is fair to say that that was a wave of legislation that was necessary to clearly set out not only what assets could be confiscated within the criminal envelope but who would take them and where the proceeds would go.

This had been the development of confiscation laws around Australia. Certain processes had to be gone through when these applications were made, particularly to ensure that we fairly and equitably dealt with assets that might be co-owned with parties who had no interest in or did not participate in any way in relation to criminal conduct—a spouse, for example, in respect of joint ownership of a home and that type of thing.

We then looked at another area of law where I think it is fair to say that, depending on the seriousness of the offence, there would be automatic confiscation of assets. That related to legislation we considered, the last of which was the prescribed drug offenders proposal under the previous government, which essentially introduced a regime within the confiscation of assets envelope. If you were convicted of a certain offence, then by prescription you would be called into a new formula and, if you were identified in this area, it would have the consequence of an automatic confiscation of the whole lot.

In particular, that bill set out a prescribed drug offender to whom these deemed forfeiture orders would apply. A person was a prescribed drug offender in the circumstance where they were convicted of a serious drug offence and the conviction was a commercial drug offence, or:

…the person has at least 2 other convictions for prescribed drug offences and those offences and the conviction offence were all committed on separate occasions within a period of 10 years, not including any period during which the person was in government custody.

A different set of rules would apply to them. The former government, in its proposed enhancement of these laws, wanted to introduce another aspect, which was to enable police to search a person or their vehicle if they were seen entering or leaving a property that they reasonably suspected might be used for the manufacture, distribution or storage of illicit substances. When we, in opposition then, teased out the reason for this, it became clear that nowhere else in Australia was this proposed law in operation. Sometimes we do progress laws that have not been applied anywhere else in Australia, but we still think they are a good idea and we are happy to progress them.

When we looked at it with the assistance of the South Australia Police in our consultations on this matter, it was clear that there had been at least one legal case where I think it is fair to say that the police had some egg on their face. They were probably trying to do the right thing. Nevertheless, they identified a person in a vehicle—in an area not even in the same street as a place they might have been watching and keeping under surveillance—and felt they should have been able to inspect this vehicle. They had to prosecute the argument that there was reasonable belief that qualified them to undertake a search—and they failed.

Understandably in that circumstance, the courts did not allow them to progress the admission of evidence in relation to it. Sure, that can be a bit embarrassing, but they came to this parliament via the former government seeking to remedy that by saying, 'We don't think we need to have this threshold. We just think we ought to be able to do it if they are anywhere near a place that we are looking at and they have been seen entering or leaving it.'

Of course, we have raised issues about other tradespeople going in. I think I used the example of someone going in to read the electricity meter, who might then leave and then next thing their van will be searched because they might be caught by this aspect. We raised a number of these examples because we felt this had been a stretch too far and that it was not necessary, other than to allow the police to do something without having that threshold obligation to satisfy themselves.

We simply do not, in South Australia, allow people—police or anyone else—to stop people in the street and say, 'I want to pat you down and search you,' or, 'Open up your car and we just want to have a look inside.' Nor do we allow them to come into your house and check your records, open the dishwasher, check what is in the back of your freezer. This is not something we support in Australia, and the reason we do not is that we respect that people ought to be able to get on with their normal life and ought not be caught up in criminal surveillance and investigations unless there is some just cause to do so.

We ask the police to make that assessment and present the arguments for satisfying that, if they want to proceed in their investigations to undertake these types of searches. That is the fundamental principle we are talking about here. I appreciate the member raising the matter. There is a long Hansard contribution in relation to the former legislation, but we felt this was not an acceptable addition; it was not necessary. On examination of the case, as it turned out, the cases evaporated down to one case, and really that did not justify it.

To the best of my knowledge, going into government, we have not had any submission from the police seeking that this be resurrected or that it be pursued as a priority for SAPOL. The case would have to be made out and perhaps they still want it but have not asked, or perhaps they still want it and they think we would not do it. I do not know the answer to that. I cannot recall in the meetings that I have had with the police commissioner that this is an area of priority for them, so to the best of my knowledge it has not been advanced.

But there are practical aspects of confiscation law which are impeding our SAPOL officers in implementing confiscation which are meritorious and we need to sort them out. I thank the opposition for indicating their support for them. But if I could use just one example, perhaps for some comparison, when officers are sent in to confiscate someone's asset under bankruptcy—this is to recover assets to pay creditors—there is a whole lot of law about it and it does a number of things. Firstly, it allows the debtor to have some personal assets salvaged in the list.

When you do this, they cannot take the clothes off your back and there are a couple of things like tools of trade and personalty, not valuable jewellery but personalty, which are exempted. That is what we do in the bankruptcy law and we also give that process the option that if money is paid out in full settlement of the debt and the costs that are associated with it, then in some circumstances the bankrupt can enter into arrangements where they are able to pay the money instead of having the rest of their assets confiscated or part thereof.

When we come to this law, it is completely inflexible as it is at the moment. It means that when the police go down to take assets, they have to take everything because we have actually prescribed in the law that they have to take everything. I do not think even the former government intended that. Why would you want to take things that are of no commercial value? Why would you have to take a motorcycle that does not work and, of course, you are just going to have to pay to have it towed away?

Pretty quickly the people involved in having to do this raised it with the former government and said, 'If we are going to recover these assets, all the good ones that we can then quickly liquidate and make good the debt owed to the Crown, we need to be able to do this. If we have to go in and take the whole lot, where are we going to store this stuff? It might be worth nothing.' There might be a long delay in the process of selling things. There might be a live animal involved. There are lots of things that complicate these confiscations.

Essentially, the police want to be able to do three things. Firstly, they want to be able to negotiate to take money instead of the items if it turns out at the last minute that they want to be able to do that. Secondly, they want to be able to take part of the assets—the things that might only be valuable. Thirdly, it enables there to be a consent order to reflect the deal done in settlement of liability. We agreed with that. We are disappointed it was not advanced through the parliament.

I know the former government had other priorities. I have said plenty of times that they were happy to deal with other issues including getting rid of fairness clauses in the constitution and all sorts of other things. We have had plenty of time to do that. This was an important piece of reform which ultimately could have given us another year to be able to actually get on with this confiscation from all these bad guys that we all agreed needed to be in the category of, 'This is so serious, we are taking your assets and we are going to put a capacity in here for them to be able to be liquidated.' Having found the deficiencies in the machinery of operation of that, they should have been remedied. It is disappointing that that did not happen.

I remind members that perhaps we might have had some extra money that had gone in to the Victims of Crime Fund because that is the recipient of the money from the sale of assets in the state—assets that we all agree need to be sold. We want it in the fund. It is a fund that does good work. It needs to be able to be applied to the Victims of Crime Fund in the commissioner's office to victim support services and the like. We want to ensure that that is as flush as possible with funds from those who unrichly have received assets and who richly deserve to lose them.