❓ Dr. Walker questions the Attorney General regarding the DPP's discretion in seeking drug trafficker declarations under the Misuse of Drugs Act 1981. The Attorney General clarifies the DPP's policy and confirms that the DPP has not delegated this responsibility.
AnsweredQoN 187Legislative Council
Asked
17 March 2022
Member
Portfolio
parliamentary secretary representing the Attorney General
QuestionView source ↗
MISUSE OF DRUGS ACT — DRUG TRAFFICKER
DECLARATIONS
187. Hon Dr BRIAN WALKER to the parliamentary secretary
representing the Attorney General:
I refer the Attorney General to section 32A(2) of the Misuse
of Drugs Act 1981, which repeatedly employs the word ''may'' when
referring to drug trafficker declarations—that is, an application may
be made.
(1) Am I right
in assuming that the Director of Public Prosecutions has a discretion not
granted to our judges insofar as she can choose whether or not a declaration is
sought in the first place?
(2) Has the
DPP delegated responsibility for making such decisions in regard to drug
trafficker declarations to any staff member subordinate to her; and, if so,
which DPP employees are authorised to make such decisions, under what
circumstances, and is such delegation absolute or does the DPP maintain a level
of practical oversight?
DECLARATIONS
187. Hon Dr BRIAN WALKER to the parliamentary secretary
representing the Attorney General:
I refer the Attorney General to section 32A(2) of the Misuse
of Drugs Act 1981, which repeatedly employs the word ''may'' when
referring to drug trafficker declarations—that is, an application may
be made.
(1) Am I right
in assuming that the Director of Public Prosecutions has a discretion not
granted to our judges insofar as she can choose whether or not a declaration is
sought in the first place?
(2) Has the
DPP delegated responsibility for making such decisions in regard to drug
trafficker declarations to any staff member subordinate to her; and, if so,
which DPP employees are authorised to make such decisions, under what
circumstances, and is such delegation absolute or does the DPP maintain a level
of practical oversight?
AnswerView source ↗
I thank the honourable
member for some notice of the question. On behalf of the parliamentary
secretary representing the Attorney General, the following answer has
been provided to me by the Attorney General.
(1) Pursuant
to appendix 2 of the DPP Statement on prosecution policy and guidelines 2018 ,
if a person is convicted of a serious drug
offence under the Misuse of Drugs Act 1981 and section 32A, ''Drug
trafficking'' , is applicable, the Director of Public Prosecutions
will make an application for an order that the person be declared a drug
trafficker at the time of conviction or within six months of the date of the
conviction. However, if a person is declared a drug trafficker pursuant to
section 32A but the cost of recovering the property exceeds the likely return
to the state, in the absence of other public interest factors, it may not be in
the state's interest to seek recovery of particular property. It is
important to note that a drug trafficker declaration does not automatically
mean there will be a further application under the Criminal Property
Confiscation Act 2000 for the confiscation of property.
(2) No.
member for some notice of the question. On behalf of the parliamentary
secretary representing the Attorney General, the following answer has
been provided to me by the Attorney General.
(1) Pursuant
to appendix 2 of the DPP Statement on prosecution policy and guidelines 2018 ,
if a person is convicted of a serious drug
offence under the Misuse of Drugs Act 1981 and section 32A, ''Drug
trafficking'' , is applicable, the Director of Public Prosecutions
will make an application for an order that the person be declared a drug
trafficker at the time of conviction or within six months of the date of the
conviction. However, if a person is declared a drug trafficker pursuant to
section 32A but the cost of recovering the property exceeds the likely return
to the state, in the absence of other public interest factors, it may not be in
the state's interest to seek recovery of particular property. It is
important to note that a drug trafficker declaration does not automatically
mean there will be a further application under the Criminal Property
Confiscation Act 2000 for the confiscation of property.
(2) No.
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