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Legislative Assembly for the ACT: 2003 Week 2 Hansard (4 March) . . Page.. 437 ..

MR STANHOPE (continuing):

The Committee has commented on clause 43 (3), which requires the Court to obtain the agreement of the DPP before excluding from a restraining order any property that has evidentiary value in a criminal proceeding. The Government acknowledges that it is unusual to make a power of the Court dependent on the agreement of a public official. In this case, the Government believes that this provision is essential to ensure that the actions of the court in releasing property from a restraining order do not result in the loss or destruction of essential evidential material. As the officer responsible for conducting prosecutions in the ACT, the DPP is better placed than the courts to know whether a particular item of property will be produced as evidence in a future trial. Clearly, in exercising the "veto"under this provision, the court would require the DPP to justify his or her position that the property in question does in fact have evidentiary value in a criminal proceeding.

As I say these are difficult issues. We acknowledge the uniqueness of that particular power, but once again we believe it is reasonable and that there are protections insofar as the DPP will be put to a test in relation to any application to exclude certain matters on the basis of their potential evidentiary value.

I will touch on another issue before concluding. Ms Tucker raised serious concerns about the definition of "serious offence". The definition of "serious offence"is essentially an indictable offence with a potential penalty of more than five years, I think it is. This is the subject of one of Ms Tucker's amendments, and we can perhaps discuss this issue when her amendment is being debated. Ms Tucker has also foreshadowed amendments in relation to literary proceeds, and we will perhaps pursue those issues.

I think it does need to be said, though, that in relation to the definition of "serious offence"we are talking about offences that are indictable, that do attract a penalty of more than five years imprisonment. These are genuinely serious offences. The government has chosen not to distinguish between one serious offence and another, as Ms Tucker is inclined to do. Ms Tucker is inclined to narrow the definition of "serious offence"down to issues in relation to drugs, issues in relation to fraud, and I cannot quite remember the other. But, essentially, Ms Tucker has imposed her own definition of the sorts of offences that organised crime, in her view, is engaged in.

Ms Tucker would exclude from the automatic forfeiture legislation proceeds from a gang of extortionists. Why would you pursue the proceeds of a drug cartel but not a cartel of extortionists? Why would you exclude murderers? Why would you exclude the Chopper Read case? Why would you exclude murderers from automatic forfeiture provisions? What if there were a cartel of hit persons? If you are a hit person, if you are a Neddy Smith, you are excluded by Ms Tucker. So you exclude murderers, you exclude extortionists, you exclude burglary rings, but you include drug traffickers and fraudsters. I just cannot see the sense in that. Serious crime is serious crime; these are heinous crimes. I am inclined to ensure that drug traffickers not profit from their proceeds of crime, but I also do not think murderers should either.

Question resolved in the affirmative.

Bill agreed to in principle.

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