Criminal Assets Confiscation (Miscellaneous) Amendment Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:22): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and explanation of clauses inserted in Hansard without my reading them.

Leave granted.

Mr President, the Bill I introduce today is the Criminal Assets Confiscation (Miscellaneous) Amendment Bill 2024, amending the Criminal Assets Confiscation Act 2005 (hereinafter referred to as the CAC Act).

There are a number of the amendments in the Bill that were recommendations from the 'Review of amendments to the Criminal Assets Confiscation Act 2005 enacted by the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Act 2016' (the Review). 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 which arise from the recommendations of the Review are:

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

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 Bill will make freezing orders more effective by extending the time that they can apply from 72 hours to 7 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 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.

Mr President, 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.

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.

Debate adjourned on motion of Hon. D.G.E. Hood.

At 15:24 the council adjourned until Tuesday 18 June 2024 at 14:15.