Bills

Criminal Assets Confiscation (Miscellaneous) Amendment Bill

Introduction and First Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (12:01): Obtained leave and introduced a bill for an act to amend the Criminal Assets Confiscation Act 2005. Read a first time.

Second Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (12:01): I move:

That this bill be now read a second time.

I introduce today the Criminal Assets Confiscation (Miscellaneous) Amendment Bill 2024 amending the Criminal Assets Confiscation Act 2005, herein known as the CAC Act. A number of the amendments in this bill were recommended from the review of amendments to the Criminal Assets Confiscation Act 2005 enacted by the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Act 2016. There are also additional amendments to the freezing order provisions of the CAC Act, and amendments relating to the use of the warrants under section 172. The amendments contained in the bill that arise from the recommendations of the review are as follows:

an amendment that clarifies that the definition of 'government custody' includes a period of home detention;

an amendment clarifying that property that is subject to a restraining order can still be under the effective control of a prescribed drug offender; and

an amendment that clarifies that forfeited property can be dealt with in a manner that the administrator thinks fit, including the destruction of the property.

Further amendments relate to the freezing order provisions of the act. Freezing orders require financial institutions to freeze the specified accounts, not allowing deposits or withdrawals. A freezing order prevents monetary assets from being transferred and hidden prior to a restraining order or forfeiture order being made in relation to that asset.

The amendments in the bill will make freezing orders more effective by extending the time that they can apply from 72 hours to seven days, allowing for a longer period for the South Australia Police and the Office of the Director of Public Prosecutions to prepare an application for a restraining order or forfeiture order. Freezing orders will also be able to apply to classes of accounts, rather than having to specify an individual bank account.

An application for an extension to a freezing order will now be possible where a restraining order application will be made but has not yet been made. The amendments also provide that a magistrate, when considering an application for a freezing order, may have regard to a series of factors including the amount held in the account or whether the account is held in joint names, rather than those factors requiring mandatory consideration.

In addition, a catch-all factor of 'any other relevant consideration' has been added to expand the scope of what a magistrate may consider. A magistrate will still be required to consider whether any hardship is reasonably expected to be caused as a result of the order.

Recent legal proceedings under the CAC Act have also brought to light an issue related to warrants issued pursuant to section 172 of the act in respect to a type of property classified as a chose in action. The amendments will validate any past seizures of choses in action pursuant to CAC Act warrants, validate any subsequent actions and orders made in those matters, and provide that no liability attaches to the Crown or other person as a result of any seizures.

The amendments in this bill will improve the operation and effectiveness of the CAC Act, enabling the South Australia Police to ensure that offenders do not profit from their crimes. I commend the bill to members and seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

Part 2—Amendment of Criminal Assets Confiscation Act 2005

2—Amendment of section 6A—Meaning of prescribed drug offender

This clause amends the definition of government custody to include custody under a home detention order under Part 3 Division 7 Subdivision 1 of the Sentencing Act 2017.

3—Amendment of section 17—Authorised police officer may apply for freezing order

This clause broadens the power to make freezing orders (in particular by allowing a freezing order to be made in relation to a class of accounts).

4—Amendment of section 21—Duration of freezing order

This clause increases the maximum duration of a freezing order from 72 hours to 7 days, allows extension of a freezing order in circumstances where an application for a restraining order is yet to be made and makes a consequential amendment.

5—Amendment of section 56A—Prescribed drug offenders

This clause makes a clarifying amendment.

6—Amendment of section 93—How forfeited property must be dealt with

This clause provides a clarifying amendment making it clear that property may be disposed of under the section by selling the property, arranging for the destruction of the property or in any other manner the Administrator thinks appropriate.

7—Amendment of section 172—Warrants authorising seizure of property

This clause validates certain warrants issued before the commencement of this subsection authorising (or purporting to authorise) the seizure of money in a bank account held by a financial institution or any other thing as a chose in action.

Schedule 1—Transitional provisions

1—Application of amendments to section 21 of Act

This clause provides a transitional provision.

Mr TEAGUE (Heysen) (12:05): I am the lead speaker, and I indicate the opposition's support for the bill. I indicate that I have had the benefit of notice and a briefing, albeit in the course of the last day or two, and that has permitted the unusual convening of my party room for the purpose of considering the bill in light of the briefing and so on, but this has all sort of come to attention at that kind of notice.

I also recognise that I have been given the benefit of the observations of, in particular, the Chief Justice in the course of proceedings earlier this year. To frame this up, as I understand it and as I think sort of emerges from the bulk of the bill, the first six clauses of the bill are dealing with matters that are amending the arrangements for what is now well familiar in terms of freezing orders in particular. I might just spend a moment or two addressing clauses 3 and 4 in that regard. It would appear to me that nothing about clauses 1 to 6 is, as it were, unusual or attended by any particular urgency, but I regard those as changes that the government has sought advice about and are being brought along in the usual course.

The reason why we are here today and in the circumstances that we are, again, just to take some of the wind out of the sort of urgency sails, as it were, my understanding is that it was the government's intent to give notice about this yesterday. This would have been introduced in the normal course at least to that extent. That has not happened, and so it has been necessary to suspend standing orders to bring it on, but it is not that much of a surprise, if I put it that way.

The reason for the matter, in the government's view, being desirable to be debated and to move through all stages in the house today is so that it can then get to the other place in the next sitting week. That will in due course permit the bill to pass through the parliament ahead of what we anticipate, according to the sitting schedule, is a longer than usual break from sittings that will occur later in the winter.

It is permitting the orderly passage of the bill in terms that the government has been advised are desirable to deal with it expeditiously but not so as to be so precipitous as to avoid the opportunity for consultation. I appreciate that the government is undertaking the Attorney's indication that targeted consultation will indeed occur between the houses. It is good that that opportunity is taken because what is happening here is in large measure responsive to what has been on the one hand police practice over a period of time, as I understand it, and then matters that are coming before the courts. They are matters of interest to practitioners and, of course, to those who are subject to the orders.

So dealing first with clauses 3 and 4 that change the arrangements in terms of freezing orders, we see clause 3 amends section 17(2) to just shift the dial, I suppose, in terms of the mandatory consideration. The mandatory consideration is to be limited to hardship that might reasonably be expected as the result of the operation of the order. Presently, under that section there is a group of mandatory considerations, but the one that would remain after the amendment is a mandatory consideration to consider hardship that might 'reasonably be expected to be caused to any person by the operation of the order'.

That is of long standing and that is retained, and there are practical reasons for that to be a mandatory consideration of the court. There are readily examples in which hardship might be presented, particularly in circumstances where significant assets necessary for day-to-day living in family circumstances, as well as for the individual directly affected, will often be the subject of submissions.

But it renders then the remainder of the conditions that are presently the subject of section 17 as no longer mandatory but discretionary, so discretionary considerations now as to the quantum, whether or not the relevant account is held in the name of more than one person and any other relevant matter, so there is a discretion that is introduced. That is the subject of clause 3 relevantly. Clause 4 then moves out the period of time that is required.

I might say before moving off clause 3 that if one just compares it to section 17 as it presently stands, there is also the matter of the timing of provision of evidence. As I read it, the balance of section 17 remains unamended, so existing subsection (3) requires that 'the applicant for a freezing order must submit evidence in support of the application in the form of an affidavit' subject to circumstances that are the subject of section 18 for urgency. There is the possibility provided, therefore, for the magistrate to make such an order in circumstances of urgency, having obtained appropriate undertakings. The substance of clause 3 goes to moving a number of those matters, then, from mandatory considerations to discretionary considerations.

Clause 4 then addresses itself to the duration of the freezing order. That has, as I understand it, come in response to matters of practicality. Section 21, as it presently stands, at subsection (1) provides that the freezing order that is made pursuant to section 17 ceases to be in force on the first occurring of either:

(a) the making of a restraining order in respect of the money in the account; or

(b) the expiration of 72 hours after the time at which the freezing order took effect…

The advice, as I understand it, is that that period of 72 hours is often for practical purposes insufficient and that, notwithstanding the possibility for an authorised officer to 'apply to a magistrate for an extension of the duration of a freezing order', it is either imposing an unnecessary burden in terms of what is a frequent application for necessary extension or otherwise is creating a circumstance that is just impractical in terms of taking that next step to the obtaining of a restraining order.

In circumstances where, as a practical matter, a section 21(2) application is being made to the magistrate and in circumstances where those criteria are readily met, then it becomes a time when the necessity to do that as a matter of course might be obviated with a view to creating greater certainty and also relieving the court's resources of having to deal with those extension applications. That is what I wanted to draw attention to in terms of clause 4. As I say, those amendments to what is otherwise the ordinary functioning of the act, as I understand it, have been the subject of consideration and have been on the way to be introduced as reforms in the ordinary course.

I turn then to clause 7, which is the reason, as I understand it, for the bill being prioritised. Clause 7 is dealing with an entirely different part of the act, on the face of it. Those clauses that deal with freezing orders and restraining orders are the subject of part 2 and part 3 of the act respectively. They interact with one another. The confiscation act is structured so as to provide for a short-time freezing order that is followed by restraining orders that are then in place for the relevant duration.

In an entirely different part of the act, there are provisions that apply to powers of seizure of materials and that is the subject of division 5, subdivision 2 of part 6 of the act and more particularly section 172.

In circumstances where we have been talking about a process that is followed under the act, provides for freezing orders to be in place for a short period of time, followed by the obtaining of restraining orders over that property that is frozen, we have then separate to all of that a regime for search and seizure, for search warrants and particularly the subject of section 172 for the issuing of warrants authorising the seizure of property.

It is my understanding that the practice for some time has been one adopted by police to go about the task in terms of matters the subject of the act, adopting or obtaining and acting upon warrants and, in the course of seizing a variety of materials then pursuant to the section 172 warrant, seizing property including the contents of a bank account. It is the process of doing so where one is then interacting with what is a chose in action, the contents of a bank account; police are purporting to act on a warrant for seizure of the contents of a bank account. That has involved then the transfer of funds from the relevant bank account and then a subsequent order restraining those funds.

The work that clause 7 is doing, by providing as it does for the regularisation of such warrants, is to leave in no doubt the validity on the one hand of the warrant in terms of the seizure of money in a bank account that is held by a financial institution, as a chose in action, taking the issuing of the warrant for that purpose as valid, and rendering that seizure and any subsequent actions not liable to legal challenge and otherwise removing liability of the Crown in relation to the relevant seizure.

In what might be a neat point lost on many who might follow the debate, where the object of the act is to provide for the confiscation of assets, there is a freezing and restraining regime in one part of the act, there is a seizure regime and warrants for seizure regime in another part of the act and, where seizure followed by restraint might be called into question as an effective tool vis-a-vis a chose in action, then clause 7 is working to regularise that step.

It might be put that the proper way to go about things, in terms of preserving the chose in action, is to adopt the freezing followed by restraining steps. As I say, I am advised by the government that on occasions, I do not know how many, therefore effecting more than just a single example, it has been a practice of police to undertake that part 6 approach to the task, that section 172 approach, rather than to proceed on the part 2 freezing and part 3 restraining order path.

I set all of that out, that is my understanding as I have been advised by the government, and I again indicate that I appreciate having been given some opportunity to interrogate those circumstances and then to have an understanding of the meaning of where we are at. It is a further comfort that there is an opportunity now for the bill, having been the subject of debate in this place today, to then be the subject of consultation between the houses and that we will be in a position for the matter to be further considered in another place, in the light of that as well as the light of this debate, and in those circumstances the opposition supports the passage of the bill through the house today.

Bill read a second time.

Third Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (12:27): I move:

That this bill be now read a third time.

Bill read a third time and passed.