Criminal Property Confiscation Act report by the Hon Wayne Martin

In May 2019, former Chief Justice of WA, the Hon Wayne Martin AC QC, handed his report to the Western Australian Government on the Criminal Property Confiscation Act 2000 (WA).

In December 2019 the government finally made the report public. Unfortunately, the Government has not announced whether it agrees and will act on the recommendations made by Mr Martin. The only public statement from the government is a comment made by Attorney-General the Hon John Quigley MLA to WAToday:

Mr Quigley is reported as saying (through a spokesperson) simply that he
thanked Mr Martin for his work on the review and “The state government will consider the recommendations and potential resourcing implications for the legal system”.

With a State election due in March 2021 time is quickly running out for the Government to announce any major reform, consult and draft legislation and then pass it through Parliament.

This should not distract from the significance of the recommendations made in the report. If the recommendations were largely implemented it would be very welcome.

The CPCA report and the submissions made to Mr Martin

The report is not easy to find on the Parliamentary website. For convenience here is the link: CPCA report by the Hon Wayne Martin AC QC.

I made two submissions which I am pleased to see Mr Martin extensively referred to in his report. Many of the submissions made to the review were made public on the Department of Justice website for a brief time. Luckily I kept copies. Unfortunately they are no longer publicly available. Copies of my submissions are available here.

Mr Martin notes:

“In a number of submissions … it was contended that the Act is so flawed in so many respects, some of which are fundamental, that the preferable course is to repeal and re-enact the Act, rather than make wide ranging amendments.((At [4.1].))”

I entirely agree.

The most important recommendations are as follows.

Legal representation at compulsory interviews

A person subjected to a compulsory interview by the WA Police (where there is no right to silence) should be entitled to have a lawyer present. The situation is presently unclear.((Recommendation 57. See currently s76 of the Criminal Property Confiscation Act.))

Rights of property owners: freezing notice or freezing order

There should be no difference in the rights of a property owner based on whether their property has been frozen by a Justice of the Peace under a freezing notice or by a Court under a freezing order.((Recommendation 2))

Freezing notices should be temporary

Freezing notices should be temporary. The DPP should be obliged to seek their continuation before a Court.((Recommendation 38))

Criminal Property Confiscation Act statutory declarations

The time to give a statutory declaration should be extended from 7 to 21 days.((Recommendation 40))

Objection to confiscation time frames

The court should be able to extend the time to object to confiscation if the person misses the deadline.((Recommendation 44)) This will be of real assistance to people who are in jail and may find it hard to object within 28 days.

Discretion to decline confiscation in the public interest

In all cases other than cases relating to crime-derived property, the court should have a discretion to decline to order the confiscation of part or all of the relevant confiscable property in the public interest, or in the interests of justice.((recommendation 6)) The significance of this discretion just cannot be understated. It could cure all manner of unfairness inflicted on all manner of people: from wives, girlfriends, business partners, parents, lenders and even victims.

Drug trafficker declarations

For drug trafficker declarations Courts should look at the pure weight of the drug without regard to admixtures or cutting agents, and in the case of cannabis without looking at the number of plants.((recommendation 8))

If a person who has been convicted of a serious drug offence and who could be declared a drug trafficker establishes on the balance of probabilities that the offence was not committed for commercial purposes the court should have a discretion not to declare them as a drug trafficker. This would be a very very welcome development.((Recommendation 9))

The simple reality is that many people do have possession of more than an ounce of a number of drugs for their own use and for sharing with close friends. These people are currently caught within the definition of “drug traffickers” which in such cases is a most unfair and inaccurate form of ”pejorative branding”. ((as it was eloquently dubbed in Emmerson v The Director of Public Prosecutions & Ors [2013] NTCA 04 at [112]))

Substantial connection for Crime-used property

Only property which is used in such a way as to have a substantial connection with the commission of the relevant offence should be at risk of confiscation on the basis that it crime-used property.((Recommendation 12))

Compensation for wrongly frozen property

The State should be required to compensate innocent people whose property has been wrongly frozen.((recommendation 25)) This would be 180 degree reversal of the current law which provides that the State cannot be held liable for such losses.

Innocent spouses and other third parties

Recommendation 28 is important. Many people had called for a widening of the categories of people who can claim an interest in property. I often act for innocent wives and girlfriends (and occasionally innocent husbands) whose spouse has committed an offence that could see them declared a drug trafficker.

I have seen first hand that many innocent partners are not registered on title for the family home. In the Family Court (if they split up) the innocent person could likely claim an interest in the house. A lot of people called for similar claims to be available under the CPCA. Mr Martin rejected that suggestion.

Although this will disappoint many, I believe it is a principled and reasoned approach that Mr Martin has taken. The general discretion that Mr Martin has said should be introduced could still soften the consequences in such cases.((See above and see recommendation 6))

The full list of recommendations is set out at page 81 and following of the report. There are many other worthwhile recommendations which I have not included in the list above.

I hope that the government will implement the majority of Mr Martin’s recommendations. The sooner the better. I hope that transitional arrangements will also be introduced to protect people whose cases are started under the current law. That was not something addressed in Mr Martin’s report.