CRIMINAL CODE AMENDMENT (UNLAWFUL POSSESSION) BILL 2013 Second Reading Speech

Second Reading
Resumed from 27 November 2013.
HON ADELE FARINA (South West) [3.18 pm]: I rise to speak to the Criminal Code Amendment (Unlawful Possession) Bill 2013 on behalf of the opposition. As stated in the second reading speech, the bill will make the offence of possessing stolen or unlawfully obtained property an either-way offence. It will also increase the penalty for this offence when heard on indictment to make it consistent with the penalties for stealing that are set out in section 378 of the Criminal Code Act Compilation Act 1913.

The opposition has no in-principle objection to the bill; however, it notes that the second reading speech fails to articulate the policy of the bill and merely states that the bill is consistent with the government’s approach to law and order—whatever that may be—because there is no further explanation of what that is in the second reading speech. As the government fails to articulate this in the second reading speech, I again ask the Attorney General, in his reply to the second reading contributions, to actually articulate what the government’s law and order policy is and how this bill fits in that law and order policy.

Currently, possessing stolen or unlawfully obtained property, as set out in section 428 of the Criminal Code, is a simple offence. This means it can only be heard summarily and not on indictment. When a person is charged for unlawful possession under section 428 and for indictable offences, the practice is for the indictable offences to be heard in the District Court first and for the summary offences to be heard in the Magistrates Court after the indictable offences have been dealt with. When the accused pleads not guilty to the section 428 offence, it results in two trials, as a second trial must be held in the Magistrates Court for the section 428 offences. This adds to the community cost because it is a second trial.

The bill creates a new charge of possessing stolen or unlawfully obtained property by way of a new section 417 of the Criminal Code, and provides that it may be heard either summarily or on indictment. This means that when someone is charged with an indictable offence and with possessing stolen or unlawfully obtained property, these charges can now be dealt with together. The bill also provides, when the matter is heard on indictment, for the penalty to be increased to make it consistent with the penalty for stealing in section 378 of the Criminal Code—that being seven years’ imprisonment—and for increased penalties in special cases. Those special cases are when the thing stolen is a testamentary instrument, an aircraft, or a motor vehicle that the offender drives either recklessly or dangerously. The bill also provides for consequential amendments to the Sentencing Act 1995 and the Wildlife Conservation Act 1950 for the purposes of consistency. As previously stated, the opposition has no in-principle objection to the bill.

I do, however, draw one matter to the attention of the house on which I seek clarification from the Attorney General. The explanatory memorandum states—
Part 1 … provides that Part 3 Division 1 is not to commence operation before section 181(4) of the Criminal Organisations Control Act 2012 comes into operation.
However, on my reading of the bill, I cannot find these words contained anywhere in part 1. I ask the Attorney General to indicate where this requirement is set out in the bill. If it is not in the bill, I seek some clarification of why it is stated in the explanatory memorandum that it is contained in part 1 of the bill. The Attorney General’s response to that matter will determine whether we need to go into the Committee of the Whole House to explore this issue further. The explanatory memorandum clearly sets a limitation on the application of part 1 of the bill, yet that limitation is then not expressed in the words used in part 1. There is therefore an inconsistency between the words as they appear in the bill and the words in the explanatory memorandum, and I think that some explanation to the house is needed. The Attorney General’s response will determine whether we need to go into committee. However, in general the opposition has no objection to the bill.

HON LYNN MacLAREN (South Metropolitan) [3.22 pm]: I rise on behalf of the Greens to support the bill. This bill, as Hon Adele Farina stated, is an administrative amendment to the legislation, and the consequential amendments are relevant to the changes outlined in the bill. My advice is that it is very practical legislation that could save the community money by avoiding the expense of two trials in some circumstances. However, I give the Attorney General notice that I have a concern about the penalties for unlawful possession of stolen goods, which are already steep in comparison with those in other states. I would like the Attorney General to comment on the reason for that. There is a concern that this charge may be preferred by police because it is an easier charge to lay, given the evidence required compared with the evidence required for a charge of burglary or stealing. As it applies such steep penalties, it may be preferred by police. I did raise these concerns in the briefing I had from the officers today and my concerns were somewhat alleviated. I note that the briefing I got was just before we sat today, so I did not have a lot of time to reflect on the bill. However, thankfully, it is a short bill and seems to be simple. I thank the Attorney General for providing me with the briefing, albeit a bit late in the day. The Greens support the bill.

HON MICHAEL MISCHIN (North Metropolitan — Attorney General) [3.23 pm] — in reply: To start with, I thank Hon Adele Farina for indicating her party’s support for the bill, and also Hon Lynn MacLaren for her indication of support for the bill.

I will turn first to the comments of Hon Adele Farina that the policy of bill was not articulated in the second reading speech. That surprised me because I thought it was quite explicitly explained in the second reading speech. Indeed, her comments on the bill and the reasons that the opposition is supporting it are based, it seems to me, on the second reading speech, which explains the reasons for its introduction. Essentially, it is to overcome the problem of parallel or successive proceedings for an offence of unlawful possession of articles that are found in the course of a police investigation for other offences that are dealt with on indictment, and when the current offence in the way it is framed as a summary offence cannot be dealt with on indictment and is therefore left over after the substantive proceedings are disposed of.

I note on reflection that it was actually Hon Peter Collier as Leader of the House who delivered the second reading speech on my behalf in this matter. However, I refer the honourable member to page 36 of Hansard of 27 November 2013 where the leader mentions at length the mischief that this bill is intended to remedy. On page 37 he explains the course of proceedings; that the penalty for the current offence is only two years’ imprisonment or a fine of $24 000; that it is proposed to increase the penalty to make it commensurate with stealing under section 378 of the Criminal Code—that makes sense, given that we are now making it an either-way offence that can be dealt with either summarily or on indictment; that if it is dealt with on indictment, it will call for a greater penalty to be prescribed for the offence to reflect its seriousness and that it was dealt with on indictment; and he mentions the Criminal Organisations Control Act.

Since that time, the Criminal Organisations Control Act has come into operation. The situation has therefore changed since the original explanatory memorandum was prepared. I accept that it refers to provisions in the bill that are not there; that is an oversight. However, since the memorandum was drafted, that act has come into operation and there is therefore no need to delay the proclamation of this bill to accommodate it. In any event, the policy was well explained.
Hon Lynn MacLaren has gone through the merits of the bill as well. I have to say that I do not quite agree that it is an administrative amendment. It certainly corrects an anomaly and it certainly is eminently practical in that it allows for the sensible and efficient prosecution of a case when a significant amount of property has on its face been unlawfully obtained by an offender who is subject to other charges. The bill will therefore achieve the purpose of eliminating the prospect of two trials or proceedings, one in a Magistrates Court and one on indictment. The honourable member mentioned a concern that the police may choose to charge this offence, presumably because it may be easier to prove. That is always a possibility. The charges generally will be framed in accordance with the available evidence. If one can determine that property that has been seized has in fact been stolen, as opposed to giving rise to a reasonable suspicion of it having been stolen, one would expect that a charge of stealing would be preferred. However, this offence is calculated to overcome the problem of not being able to establish beyond reasonable doubt that the property has been stolen and allows for a reasonable suspicion that it has been come by unlawfully. It is not a novel offence. In fact, originally it was in the Police Act 1892. It was removed during a series of reforms of that legislation by Hon Jim McGinty when he was Attorney General under the previous Labor government. A series of social order and summary offences were removed from the Police Act and either abandoned entirely or incorporated into the Criminal Code or other legislation more suited to the purpose. One oversight, I suggest, was leaving this as a summary offence when it plainly required some form of option to be dealt with on indictment. In any event, unless any further matter needs to be disposed of, I now move that the bill be read a second time.
Question put and passed.

Bill read a second time.

Hon MICHAEL MISCHIN: Unless there is an appetite to move into committee—Hon Adele Farina has indicated no—I seek leave to proceed to the third reading forthwith.
Leave granted to proceed forthwith to third reading.

Third Reading

Bill read a third time, on motion by Hon Michael Mischin (Attorney General), and transmitted to the Assembly.