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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-10-31 Daily Xml
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CRIMINAL ASSETS CONFISCATION (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 13 November 2012.)

The Hon. S.G. WADE (17:25): I rise on behalf of the Liberal opposition to indicate our support for the bill. The bill makes sensible amendments to the act to ameliorate some unjust elements of the current scheme consistent with judicial determinations. The bill is also identical to the version of the bill created by Liberal amendments to the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Bill 2012 in September 2011 and March 2012.

The first change is to the use of pecuniary orders where a court orders that a sum of money be paid equivalent to the proceeds or instruments of crime. The current act provides that a pecuniary order must be made in relation to proceeds or instruments of crime; however, the courts have interpreted that the lack of discretion in this provision and the inability to consider public interest or ameliorating factors means the law results in harsh consequences.

Further, the courts found that the provisions have the potential to bring the administration of justice into disrepute and seem inconsistent with the parliament's intention when viewed together with statutory forfeiture provisions. The bill proposes to amend pecuniary order provisions to allow for this court discretion.

Another change relates to the forfeiture of property. Property forfeiture under the act is automatic following the expiry of a restraining order period on an asset. If an application to exclude property from the order has not been accepted within the expiry time, a literal reading of the act would mean that the property is permanently forfeited. It has been identified that this may cause an injustice whereby an application is underway but not yet resolved for property to be excluded.

If the expiry period is reached before the matter has been heard, it might be technically impossible for the application to exclude the property that is subject to the application. The bill seeks to amend the act so that the expiry period for forfeiture is extended while an application is made to have property excluded. This then allows time for exclusionary proceedings to be completed before forfeiture is finalised.

There are also some changes in relation to sentencing. The bill proposes an amendment so that a person cannot receive a discounted sentencing compensation for the forfeiture but then also a discounted forfeiture for the same reason. The bill seeks to amend the act so that the discount is only applied to one or the other, not both. This legislation has been operating for some time in South Australia and over recent years has consistently brought over $2 million in revenue for the Victims of Crime Fund.

By way of an aside, honourable members would have already read the report of the Office of the Director of Public Prosecutions that was tabled earlier this week and it indicated that in the 2012-13 financial year, $2,320,296 was deposited to the Victims of Crime Fund as a result of criminal assets confiscation. The act rightly ensures that those who are caught for criminal acts cannot profit from them and the opposition supports the bill and the technical changes to ensure the act operates as intended.

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (17:29): I do not believe there any further second reading contributions. I thank the Hon. Stephen Wade for his contribution and the indication of opposition support for this bill. I look forward to it being dealt with expeditiously through committee.

Bill read a second time.

Committee Stage

Bill taken through committee without amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (17:31): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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