Criminal Assets Confiscation (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 5 July 2018.)

Mr TEAGUE (Heysen) (12:17): I rise to speak on the bill and, in doing so, I am conscious of the remarks of the Attorney-General on the second reading when the bill was introduced into this place on 5 July. I note that in advancing these miscellaneous amendments in the criminal assets confiscation space, the bill is attending to three amendments from the Statutes Amendment (Drug Offenders) Bill 2017, which lapsed when parliament was prorogued in November 2017. These amendments, the subjects of the Criminal Assets Confiscation (Miscellaneous) Amendment Bill 2018, are attending to matters that were the subject of the bill in the previous parliament.

The bill ensures that the current criminal assets confiscation arrangements will work appropriately in the prescribed drug offenders context. For circumstances involving prescribed drug offenders, it is necessary to do this because the act allows the director to apply to the court for an order that property belonging to an offender that was an instrument of an offence be forfeited to the government and sold. For prescribed drug offenders, the situation is that all property is automatically forfeited to the Crown upon conviction, excluding items such as children's necessities and personal items and so forth. There is an automatic regime that is in place in relation to prescribed drug offenders when it comes to confiscation resulting directly upon conviction.

Money from the seizure and sale of assets of drug offenders is placed in the Justice Rehabilitation Fund. The fund may be applied by the Attorney, in the absolute discretion of the Attorney-General, as additional government funding for the provision of programs and facilities, for the benefit of offenders, victims and other persons, that will assist to further crime prevention and rehabilitation strategies.

As I indicated at the outset, it was in 2017 when the former Labor government introduced the drug offenders bill into parliament. Members may recall that that bill arose out of the former government's Ice Task Force, as it was described. The bill will not come as a great surprise in that it is a revised version of that former bill. Under the current regime, much time is taken up by and spent on the process of confiscating assets and then dealing with them once confiscated, and all the more so given the automatic nature of confiscation flowing from conviction in the context of prescribed drug offenders. The bill ensures that efficiencies are found and only assets that really should be seized are seized.

What we are doing is, firstly, making a minor amendment to section 209 of the Criminal Assets Confiscation Act regarding the costs of administering the act and dealing with confiscated property. Section 209 already allows for administration costs to be covered by money received from seized assets. The amendment will have the effect of clarifying the meaning of the term 'administration' so as to ensure that it is broad enough to cover the work undertaken by agencies administering the legislation and dealing with the assets that are so forfeited to the Crown.

This is an amendment to the regulation-making power provisions in the Criminal Assets Confiscation Act to provide that the director has operational discretion to most effectively target proceeds and assets under the Criminal Assets Confiscation Act—notably, to decide if it is in fact uneconomic or otherwise impracticable to seize assets from prescribed drug offenders.

In that way, it is to introduce a level of practicality and discretion to those whose day-to-day professional life is otherwise occupied with the nuts and bolts of having to attend to these matters. In circumstances where the assets of prescribed drug offenders are uneconomic in terms of their desirability and recoverability and so on, it will not come as any surprise to this house that we would take steps to ensure that the director has relevant and necessary discretion so as not to have to engage the office in uneconomic tasks when there is any number of important matters in which the director and his office are otherwise usefully engaged.

Thirdly, section 227 will be amended so as to clarify that the court may not award punitive or exemplary damages against the Crown if an applicant is successful in an action against the Crown to have their property excluded from a forfeiture order. There is a practical aspect to this as well, in the context of confiscation. One might consider that the director, in carrying out those obligations in relation to confiscation, is taking into account the discretion as to matters that may be economic, but is acting in a confiscation regime context and is not in a position to determine the nature, shape, size and condition of the various assets that may find themselves the subject of an order.

Practically speaking, it may be that these circumstances might arise in relation to a motor vehicle, such as a motorbike, or some other personal asset that has been confiscated pursuant to this regime, and a claim that might be made against the Crown for dilapidation, as it were—for condition, functionality issues or something of the like—in relation to the way in which that confiscated asset had been stored, kept, not used or otherwise. That is the amendment to section 227.

I might note that that finds voice in clause 8 of the bill. For reference, it is to be found by the insertion of a new subsection (1a) at section 227 that will provide simply that. It is a practical measure so as to ensure that the Crown, in carrying out its duties in relation to confiscation, is not otherwise exposed to extraordinary costs orders on such an application. There will be a new section 59B and that is the subject of clause 5 of the bill.

New section 59B is inserted so as to allow the court to make an order that property can be excluded from the automatic forfeiture provisions, again, if it will be uneconomic or contrary to the financial interests of the Crown or otherwise not in the public interest to seize that property. The regime is set out rather succinctly in new section 59B. In providing the court that power to exclude, it sets out the way in which the court will go about that. It may identify such property. It will need to specify what it is, direct that the property be excluded and may make any further directions that are necessary or convenient for giving effect to the order.

Further, section 219 will be amended so as to allow the court to make a consent order reflecting any agreement that the parties may reach in relation to a money sum being forfeited to the Crown in lieu of property being forfeited. Once again, it is a step to ensure that, where liquid assets are available in the form of money that may satisfy a confiscation order, in the interests of all sides there will be discretion to allow for money to be paid over in lieu of the confiscation of assets.

Of its nature, as I have been reminded on numerous occasions by those holding judicial office and required to enforce this legislation, it is a somewhat blunt instrument, providing as it does for the confiscation of assets in a broad way. Where there is the application of an automatic and widespread confiscation regime in the context of prescribed drug offenders, then it is important that we do what we can to make sure that in imposing these strictures on such offenders we are not in so doing creating a rod for either the court's back or a rod for the Director of Public Prosecution's back to be unduly occupied by the administration process when it comes to dealing with all the assets that may find themselves the subject of the regime.

Those are the amendments and that is the nature of them. As is the case in some of the business that remains before the house at this stage of the new parliament, it is unsurprising to members opposite, and I expect uncontroversial, as it is business that remains unfinished from the previous parliament to a very large extent.

In making these changes, we provide further steps down the path towards ensuring that when we legislate in this area, as in any other area, we endeavour to do so in a way that provides a practical regime that grants to those who are charged with the responsibility for administering the regime as much discretion, power and flexibility to do so in as economic a way as possible, and so far as the court is called upon to make orders in enforcing aspects of the confiscation regime, the court is granted the flexibility and discretion also to do so in a practical and economic way. I commend the bill to the house.

Mr ODENWALDER (Elizabeth) (12:37): I rise today to speak on the Criminal Assets Confiscation (Miscellaneous) Amendment Bill and to indicate that I am now the lead speaker on the bill and that the opposition will be supporting the bill.

An honourable member: Anything for you, Attorney.

Mr ODENWALDER: Anything for you, Attorney. It is going to be a bipartisan afternoon, I think, and we may be going home early.

Mr Pederick: The love, the love!

Mr ODENWALDER: You can feel the love, can't you?

An honourable member: After the morning?

Mr ODENWALDER: I missed it.

Mr Pederick: It's all smoothing over.

Mr ODENWALDER: It is. To be fair, part of the reason the opposition will be supporting the bill is that it is identical to a bill that was introduced by the former government last time—almost identical. We will get to that. It is almost identical, and I can only come to the conclusion that perhaps the government is out of ideas. There are plenty more.

Mr Pederick: Here we go.

Mr ODENWALDER: No, I have a filing cabinet of measures we could take to make this community safer, and we will get to those.

Mr Duluk: Not two hours of this, Lee.

Mr ODENWALDER: Sorry?

Mr Duluk: Not two hours of this, I hope.

Mr ODENWALDER: Well, what time is now? We will see how we go. How long have I got?

Ms Cook: Unlimited.

Mr ODENWALDER: Unlimited? No. It is essentially a bipartisan moment. In as far as the bill goes, the opposition does support it. As I understand it, the Attorney-General previously opposed the Labor government's version. I am not sure whether that was the whole bill or just the measures she has explicitly removed from the bill this time around and I think referred to in her second reading speech. The search and seizure powers were referred to in the second reading speech.

The Criminal Assets Confiscation (Miscellaneous) Amendment Bill 2018 introduces new provisions and clarifies existing provisions in the Criminal Assets Confiscation Act 2005, as well as some provisions made by the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Act 2016, which commences in August this year, regarding the seizure and forfeiture of property gained from the proceeds of crime and, importantly, the sale of illegal drugs. As I previously mentioned, this bill reintroduces many of the provisions from the Labor government's Statutes Amendment (Drug Offenders) Bill 2017. I have an enormous folder sitting on my desk with that very thing written across the title.

A notable exception in this bill is the so-called search and seizure powers. As I understand, the search and seizure powers relate to police officers' ability to use their intelligence—and I use the word 'intelligence' in the broad sense—to gather information on what they call drug houses: houses where they know illicit activity and drug dealing are taking place from their own intel. It gives police the power to intercept and to search vehicles and persons going to and from those houses. This is an important measure and it is a measure I have been thinking about. I am surprised that it is not included in this legislation.

I would have to go over the Attorney's second reading speech again or perhaps bring it up in the committee to be clear. If I understand it correctly, the nature of the Attorney's argument was that it was a step too far in terms of infringing on people's civil liberties and—correct me later if I am wrong, Attorney—too far an extension of police powers when compared with the evidence that informs the use of those powers. I would be interested if, in the Attorney's closing remarks, she could repeat some of her opposition to those so-called search and seize powers. It is an area of great interest to me. I flag now that I am looking at reintroducing some of those measures, if the Attorney has not already turned her mind to reintroducing those at a later date, but we will get to that in due course.

The bill also introduces a new section 59B, which allows the court to make an order to exclude property from automatic forfeiture when it is not in the financial interests of the Crown. The example the Attorney-General provided in her second reading speech was a new motorcycle purchased using a loan where the bank still owns 90 per cent of the value. The bill amends section 219, allowing the court to make a consent order and allowing an agreement that a monetary sum be paid rather than property being forfeited in an instance where there are multiple or complex ownership arrangements.

To the opposition, these seem like sensible additions and we are happy to support them. As I said, I am going to be brief. With those words, I indicate that the opposition will be supporting this bill, more narrowly drawn as it is than our bill. I look forward to the Attorney's response and to the very brief committee stage.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (12:42): I thank the members for their contributions to this debate and, in particular, acknowledge the support of the opposition representative to the bill. The matters raised by the opposition require some comment and I will attempt to identify some of the aspects without traversing all the debate in relation to confiscation law.

I think it is fair to say that there have been three stages of confiscation law since we have been here. The act that we are currently dealing with and purporting to propose amendments to is the Criminal Assets Act Confiscation Act 2005. I think it is fair to say that that was a wave of legislation that was necessary to clearly set out not only what assets could be confiscated within the criminal envelope but who would take them and where the proceeds would go.

This had been the development of confiscation laws around Australia. Certain processes had to be gone through when these applications were made, particularly to ensure that we fairly and equitably dealt with assets that might be co-owned with parties who had no interest in or did not participate in any way in relation to criminal conduct—a spouse, for example, in respect of joint ownership of a home and that type of thing.

We then looked at another area of law where I think it is fair to say that, depending on the seriousness of the offence, there would be automatic confiscation of assets. That related to legislation we considered, the last of which was the prescribed drug offenders proposal under the previous government, which essentially introduced a regime within the confiscation of assets envelope. If you were convicted of a certain offence, then by prescription you would be called into a new formula and, if you were identified in this area, it would have the consequence of an automatic confiscation of the whole lot.

In particular, that bill set out a prescribed drug offender to whom these deemed forfeiture orders would apply. A person was a prescribed drug offender in the circumstance where they were convicted of a serious drug offence and the conviction was a commercial drug offence, or:

…the person has at least 2 other convictions for prescribed drug offences and those offences and the conviction offence were all committed on separate occasions within a period of 10 years, not including any period during which the person was in government custody.

A different set of rules would apply to them. The former government, in its proposed enhancement of these laws, wanted to introduce another aspect, which was to enable police to search a person or their vehicle if they were seen entering or leaving a property that they reasonably suspected might be used for the manufacture, distribution or storage of illicit substances. When we, in opposition then, teased out the reason for this, it became clear that nowhere else in Australia was this proposed law in operation. Sometimes we do progress laws that have not been applied anywhere else in Australia, but we still think they are a good idea and we are happy to progress them.

When we looked at it with the assistance of the South Australia Police in our consultations on this matter, it was clear that there had been at least one legal case where I think it is fair to say that the police had some egg on their face. They were probably trying to do the right thing. Nevertheless, they identified a person in a vehicle—in an area not even in the same street as a place they might have been watching and keeping under surveillance—and felt they should have been able to inspect this vehicle. They had to prosecute the argument that there was reasonable belief that qualified them to undertake a search—and they failed.

Understandably in that circumstance, the courts did not allow them to progress the admission of evidence in relation to it. Sure, that can be a bit embarrassing, but they came to this parliament via the former government seeking to remedy that by saying, 'We don't think we need to have this threshold. We just think we ought to be able to do it if they are anywhere near a place that we are looking at and they have been seen entering or leaving it.'

Of course, we have raised issues about other tradespeople going in. I think I used the example of someone going in to read the electricity meter, who might then leave and then next thing their van will be searched because they might be caught by this aspect. We raised a number of these examples because we felt this had been a stretch too far and that it was not necessary, other than to allow the police to do something without having that threshold obligation to satisfy themselves.

We simply do not, in South Australia, allow people—police or anyone else—to stop people in the street and say, 'I want to pat you down and search you,' or, 'Open up your car and we just want to have a look inside.' Nor do we allow them to come into your house and check your records, open the dishwasher, check what is in the back of your freezer. This is not something we support in Australia, and the reason we do not is that we respect that people ought to be able to get on with their normal life and ought not be caught up in criminal surveillance and investigations unless there is some just cause to do so.

We ask the police to make that assessment and present the arguments for satisfying that, if they want to proceed in their investigations to undertake these types of searches. That is the fundamental principle we are talking about here. I appreciate the member raising the matter. There is a long Hansard contribution in relation to the former legislation, but we felt this was not an acceptable addition; it was not necessary. On examination of the case, as it turned out, the cases evaporated down to one case, and really that did not justify it.

To the best of my knowledge, going into government, we have not had any submission from the police seeking that this be resurrected or that it be pursued as a priority for SAPOL. The case would have to be made out and perhaps they still want it but have not asked, or perhaps they still want it and they think we would not do it. I do not know the answer to that. I cannot recall in the meetings that I have had with the police commissioner that this is an area of priority for them, so to the best of my knowledge it has not been advanced.

But there are practical aspects of confiscation law which are impeding our SAPOL officers in implementing confiscation which are meritorious and we need to sort them out. I thank the opposition for indicating their support for them. But if I could use just one example, perhaps for some comparison, when officers are sent in to confiscate someone's asset under bankruptcy—this is to recover assets to pay creditors—there is a whole lot of law about it and it does a number of things. Firstly, it allows the debtor to have some personal assets salvaged in the list.

When you do this, they cannot take the clothes off your back and there are a couple of things like tools of trade and personalty, not valuable jewellery but personalty, which are exempted. That is what we do in the bankruptcy law and we also give that process the option that if money is paid out in full settlement of the debt and the costs that are associated with it, then in some circumstances the bankrupt can enter into arrangements where they are able to pay the money instead of having the rest of their assets confiscated or part thereof.

When we come to this law, it is completely inflexible as it is at the moment. It means that when the police go down to take assets, they have to take everything because we have actually prescribed in the law that they have to take everything. I do not think even the former government intended that. Why would you want to take things that are of no commercial value? Why would you have to take a motorcycle that does not work and, of course, you are just going to have to pay to have it towed away?

Pretty quickly the people involved in having to do this raised it with the former government and said, 'If we are going to recover these assets, all the good ones that we can then quickly liquidate and make good the debt owed to the Crown, we need to be able to do this. If we have to go in and take the whole lot, where are we going to store this stuff? It might be worth nothing.' There might be a long delay in the process of selling things. There might be a live animal involved. There are lots of things that complicate these confiscations.

Essentially, the police want to be able to do three things. Firstly, they want to be able to negotiate to take money instead of the items if it turns out at the last minute that they want to be able to do that. Secondly, they want to be able to take part of the assets—the things that might only be valuable. Thirdly, it enables there to be a consent order to reflect the deal done in settlement of liability. We agreed with that. We are disappointed it was not advanced through the parliament.

I know the former government had other priorities. I have said plenty of times that they were happy to deal with other issues including getting rid of fairness clauses in the constitution and all sorts of other things. We have had plenty of time to do that. This was an important piece of reform which ultimately could have given us another year to be able to actually get on with this confiscation from all these bad guys that we all agreed needed to be in the category of, 'This is so serious, we are taking your assets and we are going to put a capacity in here for them to be able to be liquidated.' Having found the deficiencies in the machinery of operation of that, they should have been remedied. It is disappointing that that did not happen.

I remind members that perhaps we might have had some extra money that had gone in to the Victims of Crime Fund because that is the recipient of the money from the sale of assets in the state—assets that we all agree need to be sold. We want it in the fund. It is a fund that does good work. It needs to be able to be applied to the Victims of Crime Fund in the commissioner's office to victim support services and the like. We want to ensure that that is as flush as possible with funds from those who unrichly have received assets and who richly deserve to lose them.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Progress reported; committee to sit again.

Sitting suspended from 12:59 to 14:00.