Government attempts to tackle the Mr Bigs of crime in Australia often end up punishing the Mr and Mrs Littles and their innocent children. At a parliamentary hearing, CLA CEO Bill Rowlings has called for uniform justice throughout Australia, laws which meet the high standards of international convention obligations we have signed, and removing mandatory clauses which prevent judges exercising the full range of punishment options.
ROWLINGS, Mr William (Bill) Murray, CEO, Civil Liberties Australia
CHAIR: Good afternoon, Mr Rowlings. A formal submission was not received—
Mr Rowlings: I submitted two submissions today. I was not aware that this committee did not have the submissions that we had made to the Senate Standing Committee on Legal and Constitutional Affairs in 2009.
CHAIR: I have them now and I have distributed them to my colleagues.
Mr Rowlings: And we had made an earlier submission on the same topic to the Attorney-General’s Department when it called for submissions earlier in 2009 before it got to Legal and Cons.
CHAIR: My colleagues have copies of both those submissions. For the purposes of the record, they have been formally accepted for these proceedings.
Mr Rowlings: Thank you. They are rather formal, legalistic submissions that you might take some time to go through.
CHAIR: I am sure my colleagues will use their best endeavours. I invite you now to make an opening statement and then we will go to questions.
Mr Rowlings: I suspect the evidence I am going to give will be a little bit different to what you have heard this morning from the various agencies. I am quite disappointed that the Law Council of Australia is unable to make it. It is unusual for us, a volunteer group, to be left to defend against the heavies such as you have been hearing from this morning from the various agencies. If at all possible I would urge you to hear submissions from the Law Council in general and in particular from the Law Society of Western Australia, which has put quite a deal of effort into this area. The Law Council were due to appear but they were unable to appear.
CHAIR: Yes.
Mr Rowlings: I will make a statement. I want to start by telling a short story and I will preface this by saying that our concentration is on what has actually happened, and more in the proceeds of crime area than in the unexplained wealth area, but we feel that it gives a lesson. It relates particularly to mandatory issues as regards judges and sentencing.
A man aged about 40 decided to grow about 20 cannabis plants hydroponically in a small shipping container. Inevitably he was found out and charged with growing and dealing offences. The Supreme Court of the Northern Territory convicted him for a head sentence of two years suspended, with nine months home detention instead, which he served out. He was, and is, a welder by trade. Other than speeding offences and one assault about 15 years earlier he had no criminal record. He was by no means a Mr Big of crime; in fact, he would be barely described as a Mr Little of crime. But the Northern Territory DPP decided, on the basis of a suspended sentence for growing a relatively small amount of marijuana, that they would pursue the man under proceeds of crime legislation.
The container he grew the marijuana in was housed on a large rural block about 25 kilometres out of Darwin. He was leasing the land for a legitimate reason—he and a few others were planning to establish a microbrewery but they had been held up by impediments in Northern Territory government departments and agencies because of the unusual nature of the business they were planning. The block was worth $1.2 million. The man owned a house in town worth about $300,000, which one of his children and their family lived in, and another small bush block worth about $30,000. So the DPP pursued him for $1.53 million for growing 20 marijuana plants.
He is a welder. He has no other crime connections. He has no ongoing history of crime. This man and his wife, who had nothing whatsoever to do with the criminal offending, were put through more than two years of agony because the Northern Territory DPP was totally unreasonable. The wife, who is a very slim woman, ended up in hospital suffering stress and heart problems.
Eventually, because there was absolutely no wriggle room in the law, the Supreme Court judge hearing the case found against the man, but the judge himself was so upset by what he was forced to rule that he referred the matter to a full bench. After extensive delays because the man could not get legal aid, eventually the case was heard and the full bench of the Northern Territory Supreme Court creatively found that the man was liable for the value of the lease on the rural property on which the crime was committed, not for the value of the property on which the crime was committed. The worth of the lease was a negligible amount and so effectively the case was dropped.
At the same time as these proceeds of crime legal hearings in Darwin were taking place, a man in Hobart was convicted for growing 20 plants in a hydroponic set-up in a house he was living in. He was convicted in the Supreme Court of Tasmania and sentenced to a three-month suspended sentence. There was no proceeds of crime case. For all intents and purposes, the two crimes were almost precisely identical—one in a container, one in a house; the same number of plants—yet the outcomes were radically different, such is the uneven quality of justice in Australia. Civil Liberties Australia believes we should have equal justice from one end of the country to the other and hopes that this committee can help lead the way towards achieving it. For that reason, our No. 1 recommendation to this committee is to refer part (e) of your terms of reference, ‘the interaction of Commonwealth, state and territory legislation and law enforcement activity in relation to the targeting of criminal assets of serious and organised criminal networks’, to the Standing Committee on Law and Justice to produce a national approach. We think that this type of legislation is crying out for national consistency. Crimes are cross-border, but the laws are patchy depending on where you live.
Our No. 2 recommendation is that, whatever legislation or amendments come out of this process, they must address ‘serious and organised crime’—the Mr Bigs—and not be able to be used to target the Mr and Mrs Littles of Australia. CLA believes judges must be able to exercise discretion based on the seriousness of the crime. Any mandatory provisions as to how judges will act should be removed, we believe.
Thirdly, CLA asks you to consider putting in better review mechanisms to ensure innocent family members, particularly children, are not inadvertently punished by the state in proceeds of crime and unexplained wealth cases. I would like to refer you to an ongoing compilation of cases pulled together on our website since July this year. We illustrate how wives and children are being penalised even though they are completely innocent. We initiated this quite independently—we did not know about this hearing occurring. We were so concerned about this type of legislation that we started to gather the information together as a means of putting a major paper together on it.
We are also concerned about the following matters, which are fleshed out in more detail in the submissions that we tabled today, which were made originally in 2009. The laws should be drafted and interpreted in accordance with the International Covenant on Civil and Political Rights, particularly in relation to procedural safeguards. The basis of any unexplained wealth evidentiary threshold should be reasonable belief rather than reasonable suspicion, which is a much lower level. We believe the provisions in proceeds of crime legislation ignore well-established procedural rights such as presumption of innocence, the right against self-incrimination and the rule against double jeopardy. We ask the committee to consider whether forfeiture proceedings amount to punishment. If so, we would ask the committee to consider whether reversal of the onus of proof and the adoption of a civil standard of proof—balance of probabilities—is appropriate.
Finally, as a cautionary tale, I would like to highlight the story of Mr Nigel Cunningham Swift Mansfield of Western Australia. Without going into any detail, I suggest the committee look closely at that case, in which the man’s daughter, aged about 14, basically lost her teenage years at high school and the chance for a university education. In the Mansfield case, the state has been forced to pay something of the order of $6 million in compensation. There is a copy of the case here if I can tender it; you might like to have a look at it. That is the type of impact on family members that we are concerned about. We also believe that clauses permitting compensation should be included in any legislation to cover cases where the state gets it absolutely wrong, as in this case, and to ensure that the state acts with proper caution and proportionality. Thank you.