Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .

Legislative Assembly for the ACT: 2003 Week 2 Hansard (4 March) . . Page.. 436 ..

MR STANHOPE (continuing):

Other issues were raised. Once again, in particular Ms Dundas-and I think you touched on this, too, Ms Tucker-I think misunderstood the provision in relation to legal defence. I honestly think that you did not read through sufficiently issues in relation to the capacity to use legally gotten funds or resources to defend a legal action. Each of you made a case around the poor, downtrodden criminal, who has had all their assets confiscated and is thrown upon the mercy of the Legal Aid Commission. We are told that they no longer have the capacity to defend themselves because all their assets have been forfeited before they have been found guilty.

But clause 38, which is the part of the bill that goes to this point, provides a clear discretion in the court to allow the release of any funds that quite clearly are not in this category. There may be money in the bank, a house or a share portfolio. Who in Australia in this day and age, with tax file numbers, pay slips and all the other evidence we rely on, cannot show that their assets were lawfully gained? The legislative scheme is quite explicit. Clause 38 (1) states:

this is what it says-

The clause goes on to set out the circumstances in which that will be done. It provides explicitly that for property to be released from restraint for expenses, the applicant has to be able to show that the property was "lawfully acquired by the person, is not tainted property and does not have evidentiary value in any criminal proceeding". The exception in relation to lawfully acquired property is quite clear and explicit.

If somebody who is being pursued for some serious offence-and we are talking here about serious offences-cannot prove that assets such as money in the bank, a share portfolio, a home or a car relate to money that was legally obtained, then there is something pretty crook. So the exception is broad and the discretion is absolute.

The court can give a discretion to any person in respect of any property that they can prove to have been lawfully obtained. Who in Canberra today simply cannot provide some paper trail for any money or any asset they have got in their possession? Who, in this day and age with the paper trails that exist, cannot do that? I will tell you who cannot. Criminals, crooks, serious offenders-that is who cannot. Anybody else can, and the legislation is explicit and makes explicit exception in those circumstances.

Another issue that was raised related to the powers of the DPP. I acknowledge that these are complex issues. They are issues that the government thought long and hard about, to the extent that the particular power that has been provided to the DPP does, at first blush, touch on issues around the separation of powers. Once again, I would refer members to the following government response to the Scrutiny of Bills Committee, which also raised this issue:

Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .