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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-07-31 Daily Xml
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Criminal Assets Confiscation (Miscellaneous) Amendment Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (18:27): I move:

That this bill be now read a second time.

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

Leave granted.

Mr President, the Bill I introduce today is the Criminal Assets Confiscation (Miscellaneous) Bill 2018.

This Bill retains three amendments from the Statutes Amendment (Drug Offenders) Bill 2017, which lapsed when Parliament was prorogued in November 2017.

At the time when the previous Bill was put to the Parliament it included an additional proposed amendment.

The Bill included an amendment such that if a person was seen entering or leaving premises which the police reasonably suspected as being used for the manufacture, distribution or storage of illicit substances or chemicals, then the police had the power to search that person and/or their vehicle.

That was a recommendation in part from the former Government's Ice Taskforce, a report that was thin in nature and hastily developed.

The former Government inserted this clause without precedent in other Australian jurisdictions. At the time, there was nowhere else in Australia where the police have this power to search anybody or any vehicle going in and out of a suspected property.

This Bill has not included that same amendment in it, however mirrors the other aspects from the 2017 legislation, and is simply a Bill of a different name.

The Bill amends the Criminal Assets Confiscation 2005, including some provisions inserted into the Act by the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Act 2016, which commences in August this year. The amendments in this Bill facilitate the operation of the prescribed drug offenders amendments when they come into operation in August this year, and also address issues raised by the Office of the Director of Public Prosecutions in relation to the operation of the Criminal Assets Confiscation Act as a whole.

A new section 59B will be inserted in to the Act, to allow the court to make an order that property which has been subject to automatic forfeiture under the prescribed drug offender provisions be excluded from the operation of that automatic forfeiture because it is contrary to the financial interests of the Crown or it is otherwise not in the public interest for the property to be forfeited.

It is easy to envisage a situation where there may be something of value, such as a motorcycle, that the Crown would ordinarily be happy to seize, but the offender has bought it using a loan and the bank still owns 90% of the value of the motorcycle. It would simply not be economical for the Crown to seize that asset in that case.

The Bill makes a minor amendment to section 209 of the Act. Section 209 allows for administration costs to be covered by money received from seized assets, and the amendment removes some potentially narrowing terminology from that section to ensure that the term 'administration' is broad enough to cover the work undertaken by agencies in administering the legislation, and dealing with the assets that are forfeited to the Crown.

Section 219 will be amended to allow the court to make a consent order reflecting an agreement between the parties that a monetary sum be paid to the Crown in lieu of property being forfeited. It is vital that the Director of Public Prosecutions (the DPP) be able to negotiate agreements with offenders, particularly in cases where the assets may not be solely owned by the offender, but may have multiple interests involved, such as a business. Rather than having to deal with complex arrangements and paying off multiple third party interests in a property, the DPP will be able to come to an agreement with an offender for an agreed amount to be paid.

Section 227 will be amended 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 currently a risk that, because of the way the section is worded, the Crown could be liable for huge punitive cost orders because an offender's property has depreciated in value or been otherwise damaged whilst being held in storage whilst proceedings progress.

Often the aggrieved party bringing the application has not helped themselves by providing information in a timely manner which would allow proceedings to progress efficiently. In the Government's view, a regular award of costs typical for civil proceedings is sufficient for successful applications against the Crown.

An amendment is also being made to the regulation making power provisions in the Act to provide that regulations may be made that prescribe that the matter about which the regulations are being made is determined at the discretion of the Minister or the DPP.

All of the amendments in this Bill will ensure that the DPP will be able to maximise the worth of property being forfeited to the Crown, and ensure that their resources are used efficiently to target those assets which are of the most value.

Finally, this Bill, alongside others currently before the House including the Statutes Amendment (Drug Offences) Bill and amendments to the Corrections Act shows this Government's genuine commitment to fighting the scourge of drugs in our society.

We are limiting drug diversions, increasing maximum penalties, ensuring drugs do not enter our prisons, and giving the community confidence that real action is being taken on this important issue.

Mr President, I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

Operation of the measure will commence on 10 August 2018, which is the day on which the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Act 2016 commences. However, if the measure is not assented to before that date, it will commence on assent.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Criminal Assets Confiscation Act 2005

4—Amendment of section 56A—Prescribed drug offenders

This amendment is consequential on the insertion of section 59B by clause 5.

5—Insertion of section 59B

This clause inserts a new section.

59B—Exclusion orders based on financial interests of Crown etc

Proposed section 59B provides a mechanism for excluding property from forfeiture under the prescribed drug offender provisions of the Act. Property may be excluded by order of a court on application of the DPP if the court is satisfied that—

it would be contrary to the financial interests of the Crown for the property to be forfeited to the Crown; or

it is otherwise not in the public interest for the property to be forfeited to the Crown.

An order of the court under section 59B (an exclusion order) must direct that the property be excluded from the operation of the deemed forfeiture order that would otherwise apply to the property under Subdivision 1A.

6—Amendment of section 209—Credits to Victims of Crime Fund

Section 209 is amended by this clause so that there is no implied limitation on the meaning of 'costs of administering this Act'.

7—Amendment of section 219—Consent orders

Under section 219 as amended by this clause, a court will be authorised to make an order giving effect to an agreement between the DPP and another person if—

the agreement provides for the person to make a payment to the Crown instead of property of the person being forfeited under the Act; or

the agreement provides for the person to make a payment to the Crown instead of the DPP applying for a confiscation order against the person.

If an order of this kind is made, the property is taken to not be liable to forfeiture under the Act. If any forfeiture of the property occurred before the order, that forfeiture is, on the making of the order, taken to be of no effect, subject to an order of the court to the contrary.

8—Amendment of section 227—Costs and exemplary or punitive damages

This clause inserts a new subsection that provides that a court may not award exemplary or punitive damages to a person in relation to whom the Crown is ordered to pay costs under section 227.

9—Amendment of section 230—Regulations

A standard regulation-making provision is inserted so that regulations under the Act may—

be of general application or limited application; and

make different provision according to the matters or circumstances to which they are expressed to apply; and

provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister or the DPP.

Debate adjourned on motion of Hon. T.T. Ngo.

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