Criminal Assets Confiscation (Review Recommendations) Amendment Bill

Second Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Climate, Environment and Water, Minister for Industry, Innovation and Science, Minister for Workforce and Population Strategy) (12:52): I move:

That this bill be now read a second time.

This bill implements the remaining recommendations of the statutory review into the prescribed drug offender provisions of the Criminal Assets Confiscation Act 2005 that were not included in the Criminal Assets Confiscation (Miscellaneous) Amendment Bill 2024 passed earlier this year.

The bill also contains amendments made at the suggestion of South Australia Police to ensure that the CAC Act remains an effective piece of legislation to ensure criminal offenders do not profit from their crimes. The amendments implementing the review recommendations include amendments allowing the Chief Recovery Officer to assist with asset forfeitures using the powers under the Fines Enforcement and Debt Recovery Act 2017. This will promote efficiency in dealing with forfeited assets by allowing the most experienced agency to undertake the process and will free up resources within the Office of the Director of Public Prosecutions.

There is an amendment that will bring the treatment of confiscations of property from prescribed drug offender confiscations into line with those from non-prescribed drug offender by allowing for the costs of administering the CAC Act to be taken from forfeited assets prior to the remainder flowing into the Justice Rehabilitation Fund.

There has been a significant cost burden falling on South Australia Police, as numbers of prescribed drug offender confiscations have grown to become the majority of all confiscations, as opposed to when the provisions were first commenced. This issue has become particularly acute due to the large number of prosecutions associated with Operation Ironside. It makes little sense to treat these prescribed drug offender confiscations differently from ordinary confiscations, as the confiscated assets are more voluminous and are required to be stored and ultimately sold in the same way.

This amendment ensures that it is the assets of criminals that fund the operation of the CAC Act and not taxpayers. The Justice Rehabilitation Fund, which receives the prescribed drug offender confiscation proceeds, funds programs aimed to divert and rehabilitate offenders, including within the prison population.

The fund currently assists the Department for Correctional Services to provide an overall lifting in alcohol and other drug support services, including programs run by the Aboriginal Drug and Alcohol Council and Offenders Aid and Rehabilitation Services of SA Inc. The fund also supports abuse prevention programs, victim programs and the Carly Ryan Foundation. There are also amendments included in the bill that will require offenders to provide SAPOL and the Director of Public Prosecutions with information about third-party interests in property that is subject to confiscation, including proof of such interests, to prevent offenders declaring false third-party interests to try to frustrate the confiscation process.

The bill also contains a technical amendment clarifying that simultaneous convictions will be taken into account for the purposes of the definition of a prescribed drug offender, as well as clarifying amendments in relation to the exclusion of assets from confiscation in exchange for cooperation with law enforcement.

The additional amendments requested by SAPOL included in the bill are: an amendment to increase the time period that is allowed for the return of seized material from 25 days to 60 days, with an ability to apply to a magistrate for a further extension of time; various amendments to increase the penalties for offences in the CAC Act to provide further deterrence for noncompliance; an amendment to the time permitted for financial institutions to respond to requests for information under section 160 (the time period will be amended from 14 business days to at least three and no more than seven business days); and an amendment to ensure that the provisions requiring compliance with freezing orders apply to all persons, not only to financial institutions.

This bill ensures that the CAC Act continues to be fit for purpose and allows our law enforcement agencies to continue to use every available lever to tackle serious crime in our community and to ensure that criminals cannot profit from their offending. 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

2—Commencement

These clauses are formal.

Part 2—Amendment of Criminal Assets Confiscation Act 2005

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

This clause amends section 6A to clarify that in determining whether a person who is convicted of a serious drug offence has 2 other convictions for prescribed drug offences, convictions occurring in the same proceedings are to be taken into account.

4—Amendment of section 13—Delegation

This clause provides for the taking of enforcement action under Part 7 of the Fines Enforcement and Debt Recovery Act 2017 where functions relating to enforcement of pecuniary penalty orders or literary proceeds orders are delegated to the Chief Recovery Officer under the Fines Enforcement and Debt Recovery Act 2017.

5—Amendment of section 22—Failure to comply with freezing order

This clause ensures that persons (other than financial institutions) who are given notice of a freezing order are also bound by it.

6—Insertion of section 56AB

This clause inserts a new section as follows:

56AB—Prescribed drug offender to provide information as to interests in property

A prescribed drug offender must, within 14 days after a deemed forfeiture order (or such longer period as may be allowed by the DPP) provide the DPP with a statement specifying certain information in relation to property subject to the order.

7—Amendment of section 59A—Exclusion orders based on cooperation with law enforcement agency

This clause amends the section allowing a court to exclude property of a prescribed drug offender from forfeiture by:

(a) adding a requirement that the court be satisfied that cooperation was not taken into account when the person was sentenced for the offence; and

(b) specifying matters that the court must have regard to; and

(c) allowing for the monetary value of the property to be paid instead where an exclusion order would alert other persons to the applicant's cooperation and as a result put the applicant at risk of violent retribution.

8—Amendment of section 76AA—Excluding property based on cooperation with law enforcement agency

This clause amends the section allowing a court to exclude property specified in a restraining order from automatic forfeiture by:

(a) adding a requirement that the court be satisfied that cooperation was not taken into account when the person was sentenced for the offence; and

(b) specifying matters that the court must have regard to; and

(c) allowing for the monetary value of the property to be paid instead where an exclusion order would alert other persons to the applicant's cooperation and as a result put the applicant at risk of violent retribution.

9—Insertion of Part 6 Division A1

This clause inserts a new section as follows:

Division A1—Duty to provide information

130A—Suspect to provide information as to interests in restrained property

If property of, or subject to the effective control of, a suspect becomes subject to a restraining order the suspect must, within 14 days (or such longer period as may be allowed by the DPP) provide the DPP with a statement specifying certain information in relation to the property.

10—Amendment of section 160—Giving notices to financial institutions

The time within which a financial institution must provide information or documents pursuant to a notice under section 160 is reduced from 14 days to a period between 3 and 7 business days specified in the notice.

11—Amendment of section 186—Return of seized material if applications are not made for restraining orders or forfeiture orders

The time for making an application for a restraining order or a forfeiture order that would cover seized material is increased from 25 days to 60 days (or such longer period as may be ordered by a magistrate under proposed new subsection (1a)).

12—Amendment of section 209A—Credits to Justice Rehabilitation Fund

This amendment allows the proceeds of confiscated assets of a prescribed drug offender to be firstly applied towards the costs of administering the Act with the balance to be paid into the Justice Rehabilitation Fund.

Schedule 1—Further amendment of Criminal Assets Confiscation Act 2005

This schedule increases various penalties in the Act.

Schedule 2—Transitional provisions

1—Transitional provisions

This is a transitional provision related to clauses 6 and 9.

Mr TEAGUE (Heysen—Deputy Leader of the Opposition) (12:57): I rise to indicate the opposition's support for the bill and that I am the lead speaker, and I will not be long in doing so. As the Deputy Premier has just indicated in reading the government's speech into Hansard, this is the second round of amendments to the 2005 act, following some that were passed earlier in this session. The range of changes are comprehensively set out in not only the speech but the explanation of clauses that has just been introduced by leave, so I will not stay to deal with each of them.

The act itself I recall as a novelty around the time that I commenced in practice at the bar, which has now been standing for 20 years, and it has been the subject of review over that time, including the statutory review that has just been undertaken into particularly the prescribed drug offender provisions in the act. This has been introduced only in recent weeks by the Attorney in the other place and it has made its way here in a timely way. As I indicated at the outset, the bill is supported and I commend the bill to the house.

Debate adjourned on motion of Ms Thompson.

Sitting suspended from 13:00 to 14:00.