Second Reading

Resumed from an earlier stage of the sitting.

HON ALISON XAMON (North Metropolitan) [5.08 pm]: Before we broke for question time, I said that the Greens have always held and still strongly hold the view that the Corruption and Crime Commission’s most important role is oversight of the police. We maintain the position that that is how we are best able to fight serious and organised crime. It means we are ensuring that we are monitoring people who are legally permitted to use force against other people and deprive them of their liberty. That is why Parliament gave the CCC its very broad and unusual powers in the first place. A genuine concern was articulated by the Joint Standing Committee on the Corruption and Crime Commission of the thirty-eighth Parliament that legislation such as the Corruption, Crime and Misconduct and Criminal Property Confiscation Amendment Bill 2017 will redirect the CCC’s resources away from this core business—this fundamental role—of undertaking oversight of the police.

I have stood in this place in recent weeks and said that the CCC’s current oversight of police already needs improvement, as evidenced by the CCC’s refusal for years to exercise its statutory duties on police misconduct and the use of excessive force against Dr Robert Cunningham and Ms Catherine Atoms. I will refer to the parliamentary inspector’s “Annual Report 2016–17”. The parliamentary inspector was appointed in January 2013, and his report states —

During my term I have become concerned about the Commission’s response to complaints of the use of excessive force by police officers, and during the reporting period a particular complaint to me about the issue has increased my concern.

The Corruption and Crime Commission’s 2016–17 annual report states that 2 636 allegations were received about police. Of those, 1 444 resulted in no further action, 1 126 were referred back to police with the CCC to be advised of the outcome, 54 were referred back to police with CCC monitoring or reviewing police handling of them, nine were investigated by the CCC cooperatively - seven with police - and only three were independently investigated by the CCC.

This bill proposes that the CCC be further diverted from its primary task of oversight of police to act as a substitute investigator on issues that may appear to be too sophisticated and malleable for the police. This will mean that the CCC will collaborate and share functions with the very entity that it is supposed to be monitoring, despite the committee’s narrower recommendation. It will divert resources from the CCC’s usual functions. The CCC will carry out functions of the Criminal Property Confiscation Act 2000, which targets far more people than serious and organised criminals. The bill does not even narrow the CCC’s role to be involved only if there is at least a reasonable suspicion that serious and organised crime is involved. The Greens are of the view that this does not strike the right balance. As such, I will move an amendment aimed at ensuring at least that the bill targets only organised crime.

This raises the issue of who the bill will target. The second reading speech links this bill to serious and organised criminals, but as we already know, the reach of the Criminal Property Confiscation Act 2000, and hence the reach of this bill, is far wider than that. In fact, the act’s reach is so wide that when it was introduced, the Greens opposed it in that form, although we initially agreed with its objectives.

I want to be very clear that the Greens have always concurred with the policy position that wealth accrued as a result of direct criminal activity should be taken away. Our objections to the Criminal Property Confiscation Act 2000 are many, including that the act reverses the onus of proof. We remain concerned about that. We have never stopped being concerned about that act severely curtailing court discretion and that, unlike every other Australian jurisdiction, apart from the Northern Territory - including New South Wales and Queensland, where the CCC is also responsible for confiscation proceedings - in Western Australia there is no threshold requirement that the respondent be convicted of, reasonably suspected of, or in any way connected with crime. The statutory trigger for forfeiture is the wealth of the respondent.

In addition to all of those defects, the Criminal Property Confiscation Act 2000, as we have seen, is potentially highly detrimental to innocent third parties in multiple ways. The glossary in the act defines property as —

(a) real or personal property of any description, wherever situated, whether tangible or intangible; or

This is probably the most critical concern —

(b) a legal or equitable interest in any property referred to in paragraph (a);

A person might own an asset, but an innocent third party might have a secured or unsecured debt over it, such as a bank, credit agency or family member. From the briefing, I understand that third parties are generally not made aware of confiscation proceedings until after the court has made an order. At that point their only recourse is the objections process in the act. Section 28 of the act states that a court may declare upon application by the DPP— or the CCC, if clause 30 of this bill is passed—that property not owned by the respondent is available to satisfy the respondent’s liability if it is more likely than not that the respondent effectively controlled the property when the freezing notice was issued or the freezing order was made; or an unexplained wealth declaration or criminal declaration was made; or the respondent gave away the property at any earlier time. It is presumed that the respondent effectively controlled the property at the material time or gave it away unless the respondent establishes the contrary. In other words, the onus is on the applicant to prove that their case is reversed. My understanding is that an innocent third party who is a co-owner of the property may lose the case unless they can prove that they are the majority owner of the property.

A case has already been mentioned by Hon Aaron Stonehouse, but I also wish to make reference to it in my contribution. It is the disturbing issue of what happened to a Vietnamese mother of one and factory worker, Tam Nguyen, who married Phi Van Tran in 2002 and they became co-owners of their home in Girrawheen. The story was reported by The West Australian in August last year. The marriage broke down and they separated in 2010, after which Ms Nguyen continued living in and paying the mortgage on the home. In 2013 — three years after they split up — her estranged husband and his new partner were convicted of drug trafficking and the estranged husband’s share of the house became subject to the act’s criminal property confiscation provisions. The article indicates that Ms Nguyen’s share of the house is 50 per cent and as such she was left in the position of either having to buy out her estranged husband’s share or the house would be sold from underneath her and she would receive 50 per cent of the proceeds. This case relates to a different category of confiscation from the ones that the bill covers, but the same issue arises with the categories that the bill covers.

There is an objection process in part 6 of the act through which an innocent third party may have recourse if property in which they have an interest is frozen or confiscated under the act, but the process necessitates a court application by the third party within a limited time, which is extendable by the court if the property has been frozen but has not yet been confiscated. Various authorities involved in confiscation proceedings have been consulted on this bill, but really importantly, and as mentioned by Hon Michael Mischin, we have not heard the voices of a range of other stakeholders, including creditors who have loaned money for non-criminal purposes, whether formal, such as banks, or informal, such as parents and grandparents sending money to their children or grandchildren, or a number of other stakeholders who are well versed in the deep problems of the original act that we are looking for the CCC to adopt. We are left with a bill that proposes to bring together all the extraordinary defects of the Criminal Property Confiscation Act 2000 with the extraordinary powers of the CCC. The Greens simply cannot support this. If the original Criminal Property Confiscation Act had been appropriately reviewed and amended and its defects addressed many years ago, perhaps we would be in a very different position right now. Unfortunately, this legislation is still causing serious injustice to innocent people and a serious lack of proportionality for too many people when meting out justice.

Let us talk about some of the checks and balances that we may need to look at in the Corruption, Crime and Misconduct and Criminal Property Confiscation Amendment Bill 2017. We know that the Corruption and Crime Commission must provide an annual report to Parliament providing information as set out in section 91 of the Corruption, Crime and Misconduct Act. The bill proposes to add to this list a description of the commission’s activities during that year around its unexplained wealth functions. That is a good start. I am always a fan of ensuring that we have as much information as we can get within these reports so that Parliament can be well informed, particularly on entities such as the CCC that enjoys such extraordinary powers. But given the potential impact of this bill on innocent third parties, I will be moving a further amendment aimed at ensuring that Parliament is kept more fully informed of the impact on these people.

We will be talking about the bill in more detail when we go into Committee of the Whole. The Greens want to once again reiterate how concerned we are that we are extending such flawed provisions even further into the CCC. We are very concerned that this will take away valuable resources from what should be the core business of the CCC and, importantly, that it potentially creates a conflict if the CCC needs to work hand in glove with the very agencies that it has been given exceptional powers over to ensure that it keeps track on its efforts to stop corruption in this state.

[Speeches and comments from various members]

Progress reported and leave granted to sit again, on motion by Hon Sue Ellery (Leader of the House).


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