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Thursday, 28 May 1987
Page: 3579


Mr SPENDER(9.30) —We accept the amendment. But, since we are now at the Committee stage and addressing the whole Bill, there are one or two things that I want to say about the Bills as a whole and about one or two things that the Attorney-General (Mr Lionel Bowen) has said. I pointed out in my speech on the amendment to the second reading motion that this is a very complex Bill. The Attorney-General acknowledges that. It is a Bill of some 104 clauses and debate has been far too rushed in this House. It is a major package. It is a well-drawn package and I commend those in the Attorney-General's Department whose job it was to draw up this Bill. But, when one is dealing with legislation which is so novel and so far reaching, it is very much better for the legislation to be introduced and allowed to lie on the table so that we can assess it, so that we can consult and so that we can have a very much better view of the intricacies and possible difficulties that a new complex legislative package presents, especially when here we are dealing with something quite new.

We all know that there are forfeiture provisions in existing legislation. But, as I pointed out in my speech on the second reading, they are of a peripheral and archaic nature. It does not do very much good to be able to forfeit the tools that a burglar uses in his crime or to be able to forfeit implements used in gambling. We have here a proposal which we in the Opposition have urged for a long time and which royal commissioners have urged for years. This Government has now been in power, I am sorry to say, for 4 years, 2 months and a few days--


Mr Lionel Bowen —We will probably go on to eight years.


Mr SPENDER —The Attorney-General says that he will go on for eight years. There is no prospect of that because the Australian people will deliver a verdict on 11 July. The point that I make is that, in opposition, the Australian Labor Party talked a great deal about organised crime, the Fraser Government and the failings of that Government. I remind the Committee that the Fraser Government put up the National Crimes Commission Bill, which was the genesis for the National Crime Authority Bill, which became the National Crime Authority Act. That is the first thing. The Fraser Government established the Costigan Royal Commission on the Activities of the Federated Ship Painters and Dockers Union. The Fraser Government extended the terms of reference of that royal commission. These things should not be forgotten.

The Attorney-General, in referring to Mr Costigan, referred to what took place with regard to Mr Packer. I entirely endorse what he said about Mr Packer and the irreparable damage done to him by the leaking of the so-called prima facie allegations to the National Times and their publication by the National Times. If any newspaper does that, it should understand very clearly that what it is doing is perfectly indecent because the remarks once made, the publicity once given, can never be compensated for. I was glad when the Attorney-General published his views, which I endorsed at the time, that Mr Packer should be able to feel that his reputation was entirely unsullied. But that is damned little recompense to a person who has had as much unfavourable publicity as Mr Packer drew from the publications in the National Times.

Returning to one or two things that the Attorney-General has said about this Bill, I remind him that he says, in answer to questions raised concerning the rights of innocent third parties-questions which were raised from his side of the chamber as well as from my side of the chamber-that interests in assets usually have some form of registration. That was the gist of what he said. Of course, that is largely wrong. If one is talking about interest in real property and land, of course there is a system for registration. But, if one is talking about bullion, diamonds, cash or bank accounts, no registration system exists and therefore those who come to courts are faced with the prospect of proving what their interests are.

The point that must be stressed is that, when we are dealing with a legislative package which is quite new and which confers the most far reaching powers of forfeiture on courts-and rightly so because criminals should not be able to retain the proceeds or the profits from their crimes-one must understand that new legislation in unexplored territory will poise problems for the administration of justice and the rights of third parties. These are things which we all need to address. There is no politics in it; there is no basis for contention. I am sure that the Attorney-General will agree that, if problems arise concerning innocent third parties, he as the shadow Minister for legal affairs in the next Opposition and I as the Attorney-General, or whoever is the Attorney-General from our side of the chamber, should be able to get together and agree upon sensible amendments that will overcome any injustice.

For the purpose of the record I will list a few possibilities. The first is the need, perhaps, for a requirement that there be some form of advertising by the Director of Public Prosecutions of an application for forfeiture. That is not an answer in itself because we know that advertisements that appear under the legal notices are not scanned daily. But at least we have to look to the means of publicising them so that innocent third parties may be put upon notice. I know that the Attorney-General has referred to a clause which provides that a court may direct that there be some form of publicity given-but I think we need to go beyond that.

Next, it may be that the court, in deciding whether to grant a forfeiture order, should be required to consider the interests of third parties, together with the hardship of other persons who have the ordinary use of property. Next, property subject to forfeiture orders should vest in the Commonwealth subject to every charge or encumbrance to which the property was subject immediately before the forfeiture order was made. This may be intended by the legislation. However, I think that is something that we need to bear in mind so that, if it turns out that the court interprets the legislation so as not to give effect to every charge or encumbrance, for example, an equitable charge which is unregistered or an equitable interest which is unregistered, we may need to look to overcoming that at some time in the future. I do not say that it is a necessary defect. I say that it is simply a potential problem.

Next, it may well be that the Commonwealth and the official trustee in the case of restraining orders should be obliged both in the case of forfeiture orders and restraining orders to preserve the value of property, including taking positive action where necessary. Where, for example, assets which are used in a business are the subject of a restraining or forfeiture order, where does that leave the business, what are the consequences for that business and what damage is done to the value of the business? These are questions that need to be addressed. Anyone who has had any experience in receiving orders, in winding up orders in the courts, knows that once a business is closed down, the goodwill vanishes and the capacity to reinvigorate the business is marginal at best. Again, this is a matter that we need to look at carefully when we study the operation of the legislation through the courts.

Other possibilities for consideration are the possible need for provisions as to the date which is to apply in assessing the value of property. It may be that a provision similar to clause 27 (3), which deals with pecuniary interests, should apply to property valued under forfeiture order provisions. We should remember that property may be valued, there may be an appeal and it may be a long time before there is a determination. And what then? These are questions that have to be worked out by the courts and they are questions which as parliamentarians we may have to address without, as I have said, any sense of contention.

Lastly, there are limitations on time for the purposes of making an application to establish an interest in property which is the subject of orders under the Act. I believe that it is very important that people not be shut out if they neglect their rights simply because time has expired. That again is something that we are going to need to look at in the course of the operation of this Bill. But allowing for the delay of the Government in bringing forward this package, it is a Bill which the Opposition supports. I commend again those who had the job of drafting a very difficult Bill.


Mr DEPUTY SPEAKER (Mr Leo McLeay) —Order! The honourable member's time has expired.