Hansard - Confiscation Amendment Bill

CONFISCATION AMENDMENT BILL
Second reading

Mr WAKELING (Ferntree Gully) – It gives me pleasure to rise to speak on the Confiscation Amendment Bill. I listened with great interest to the contribution from the member for Bentleigh because this was a classic case of a member trying to defend the indefensible.

I was listening with great interest to his discussion, not only about this bill but in terms of the Charter of Human Rights and Responsibilities Act 2006, which I will deal with in a moment. It is very interesting to hear the spin that members opposite will put on any piece of legislation to try to cop out of a sound and rational argument that has been put by the member for Box Hill and also by the Leader of The Nationals.

By way of background, the confiscation laws dated back to 1986 and more recently to 1997, when the then Attorney-General, Mrs Jan Wade, introduced the confiscation legislation. As has been explained before, churlishly the now Attorney-General referred to Mrs Wade as a 'fascist'. One could only think that the Attorney-General is probably the only person in this house who would use such language. Of course we have recently been told by the new Premier that we now have a warm and cuddly Attorney-General as opposed to the mean and nasty one we had before.

It will be interesting to see if that language will continue in this house.

The amendments that were put forward in 2004, as the member for Box Hill has pointed out, were opposed by the Liberal Party because they went beyond the intention of the original legislation. As the member for Box Hill indicated, the government has been unable to demonstrate areas in which it has been able to make major seizures in regard to the confiscation of property through ill-gotten gains. I listened with interest to the berating by the member for Bentleigh. Again, there was a lot of spin but a lack of substance in his attack on the member for Box Hill. We will wait with interest to see future reports in regard to confiscation.

One thing that is of interest is that, as with a lot of legislation that comes into this house, it has taken this government a long time to make changes. This piece of legislation is no different.

The Court of Appeal decision occurred in February of 2007, and here we are in August debating this piece of legislation. Again, this is another example of this state government being lax in dealing with issues effectively and dealing with issues in a timely manner.

The first component of the bill deals with the allowance of properties to be confiscated with respect to an applicant's interest in the property and not specifically the entire property. As has been explained before, this comes about because of a Court of Appeal decision in Director of Public Prosecutions v. Phan Thi Le, in which case there was much argument by the wife of a convicted drug dealer with respect to her interest in a particular property. This provision will clarify that the confiscation will apply to the interests of the person concerned - namely, the defendant.

The second component deals with inserting a definition of derived property, which deals with property derived from criminal activity. What will result as a consequence of this amendment is that there will not be a requirement for a nexus between the specific action for which the person has been charged and the property they have derived as a consequence of that specific action. Any criminal activity from previous events can be linked to the seizure of this property. As explained to us through our bill briefing, this concern has been raised by both the police and the DPP (Director of Public Prosecutions).

The third component involves the applying of a test of whether a defendant has effective control of property at the time, in which case it can be confiscated even if was legally held by someone else at the time the defendant is charged or the property is restrained. This is obviously to overcome issues of whether or not a person has effective control of a property - for example, during a court case, when in effect they could argue that as they were in jail they did not have effective control.

The final major area of change involves making clear that property previously owned by the defendant but which has been transferred to someone else can only be excluded from confiscation if the property was transferred for a consideration that reflects market value. This provision obviously does not relate to a property that is purely gifted or transferred. This again was an issue that was raised in the DPP case of February 2007.

We have a number of concerns about the process and the proposed legislation. I would like to deal with two of them. Firstly, we on this side of the house have grave concerns about any legislative change with respect to retrospectivity. We always believe there is a requirement to be cautious in dealing with such issues. I would like to highlight that this legislation, if passed, will result in a direct challenge to the full bench's decision in the Phan Thi Le case. What the Attorney-General should do is publicly come out and state that this piece of legislation is as a direct result of that decision and an open challenge of that decision. It is all good and well for those opposite to sit there and cast aspersions on the federal Attorney-General when the federal Attorney-General makes comments on criminal cases, but it is now time that this Attorney-General stood up and stated publicly what this is all about. This amendment is as a direct result of the full bench's decision and he should put it as such.

The final area I would like to talk is the Charter of Human Rights and Responsibilities. This bill was much heralded by those within the Labor Party because it was about sectional interests. It appeals to those sectional interests within the Labor Party because they can then demonstrate that they are holding firm to the Labor cause. It was for no reason other than that that they trumpeted the much heralded human rights and responsibilities. The Liberal Party and The Nationals had the audacity to highlight problems with the legislation, because what the Liberal Party and The Nationals have said is that there will be occasions when the Labor Party will not be able to apply the charter of human rights. Surprise, surprise! What in fact has happened with this bill, as with other pieces of legislation, is they cannot apply the terms of this charter.

As the member for Box Hill has pointed out, and as the member for Bentleigh commented on but obviously did not understand, this piece of state legislation, which is applied to all pieces of legislation in this state, says:

A penalty must not be imposed on any person for a criminal offence that is greater than the penalty that applied to the offence when it was committed.

It does not matter what spin the member for Bentleigh or those opposite put on this. The reality is that provisions like this will mean that that provision will apply in the future to people caught by this piece of legislation. The most important thing those opposite need to sit back and recognise is that they have a piece of legislation that they have put through because of an ideological bent, but at the end of the day, if they are going to apply the provisions of their own legislation, they need to recognise that it will impact on future legislation such as this bill and other bills that will come before this house.

One only needs read the statement of compatibility that was attached to this bill.

Members opposite squirmed their way through it and tried to come up with a sensible solution, but the reality is when the statement of compatibility dealt with this clause and other clauses, government members could not answer the simple question that there is a fundamental breach of that provision. Whilst the Liberal Party will be supportive of the bill, it is incumbent upon the government to own up to the fact that this bill, like other pieces of legislation, breaches their own charter, and they need to accept that fact publicly.

Source: http://www.parliament.vic.gov.au/downloadhansard/assembly.htm