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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2021-06-08 Daily Xml
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Unexplained Wealth (Commonwealth Powers) Bill

Introduction and First Reading

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

Second Reading

The Hon. R.I. LUCAS (Treasurer) (15:42): I move:

That this bill been 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, I am pleased to introduce the Unexplained Wealth (Commonwealth Powers) Bill 2021. The Bill makes a limited text referral of power to the Commonwealth to facilitate South Australia joining the National Cooperative Scheme on Unexplained Wealth (the National Scheme).

The National Scheme comprises measures, including a limited, text-based referral of powers and provisions to support enhanced operational coordination, greater information sharing and renewed arrangements for the equitable sharing of seized criminal assets in unexplained wealth matters.

The National Scheme is designed to be complementary to, and sit alongside, existing State and Territory unexplained wealth regimes.

The Bill also contains a referral of power ('the amendment reference') to allow the Commonwealth to make limited amendments to its unexplained wealth legislation without requiring further legislative amendment in South Australia.

Providing an amendment reference is standard practice when undertaking a referral of power, otherwise the Commonwealth would be unable to amend their legislation at all, including minor or technical amendments, without having to get the participating States to complete a new referral.

Mr President, joining the National Scheme will benefit South Australia by granting an equal share of seized assets to participating States that contribute to confiscation actions under the equitable sharing arrangements.

The National Scheme also encourages greater cooperation in proceeds matters by requiring participants to inform one another of operations or legislative changes that may impact on other jurisdictions, and it also creates Commonwealth commitments to further improve information-sharing.

The Scheme will also enhance the operation of State unexplained wealth laws by granting new information-gathering powers which will allow State law enforcement to compel the production of relevant information or documents anywhere in Australia through production orders and notices to financial institutions.

It also allows for the use of lawfully intercepted information in unexplained wealth matters, which will be invaluable in identifying assets and persons of interest when traditional investigative techniques prove inadequate.

The design of the National Scheme ensures the preservation of the concurrent operation of State laws through provisions which will allow State laws to operate concurrently and permit the States to roll back amendments made to Commonwealth laws as they apply in their jurisdiction.

An Intergovernmental Agreement (IGA) underpins the operation of the National Scheme, which is signed by all participating jurisdictions.

Importantly, the IGA sets out the equitable sharing arrangements that form part of the National Scheme. The equitable sharing arrangements set out how the proceeds are shared between jurisdictions following successful confiscation orders.

In each matter where there are 'shareable proceeds', the Cooperating Jurisdiction Committee is formed in order to divide the proceeds between the jurisdictions who have contributed to the joint investigation.

The equitable sharing arrangements, aside from being outlined in the IGA, are inserted into the Criminal Assets Confiscation Act 2005, as well as being referenced in the Serious and Organised Crime (Unexplained Wealth) Act 2009. This was a requirement of the IGA, and having the related amendments to these Acts set out the equitable sharing arrangement ensures that the statutory basis for dealing with shareable proceeds that fall within the ambit of the National Scheme are clear.

Mr President, I commend the Bill to the Members and table the Explanation of Clauses.

Explanation of Clauses

1—Short title

The short title is Unexplained Wealth (Commonwealth Powers) Act 2021.

2—Commencement

Commencement will be by proclamation and section 7(5) of the Acts Interpretation Act 1915 does not apply.

3—Interpretation

This clause provides defined terms for the purposes of the measure.

4—Adoption of National Unexplained Wealth Laws

This clause adopts certain Commonwealth laws for this State as provided for under section 51(xxxvii) of the Constitution of the Commonwealth. The adopted laws are laws under Proceeds of Crime Act 2002 of the Commonwealth within the meaning of section 14C of that Act as that section is in force immediately before this Act is assented to by the Governor.

The adoption begins at the commencement of the clause, ending at the end of the day fixed under clause 9 or 10 as the day on which the adoption is to terminate.

5—Reference of matters

This clause refers certain matters to the Commonwealth for the purposes of the Commonwealth making laws with respect to those matters by making express amendments of the Proceeds of Crime Act 2002 of the Commonwealth. The matters referred are matters relating to unexplained wealth and information gathering.

Excluded from the referral are certain amendments of the Commonwealth Act requiring a person to pay an amount otherwise than by order of a court or requiring or permitting property to be restrained, forfeited or seized otherwise than by order of a court.

The reference has effect only for the period commencing at the commencement of the clause and ending at the beginning of the day fixed under the measure as the day on which the reference is to terminate.

6—Amendment of Commonwealth law

This clause makes it clear that the Proceeds of Crime Act 2002 of the Commonwealth may be amended on account of Commonwealth laws or instruments enacted or made on the basis of powers vested in the Commonwealth apart from any reference or adoption.

7—Rollback of particular express amendments

This clause gives the Governor the power to declare that certain express amendments to the Proceeds of Crime Act 2002 of the Commonwealth will not apply in respect of certain proceedings or in specified circumstances contemplated under sections 14G and 14J of the Commonwealth Act.

8—Relevant offences

This clause specifies, for the purposes of the Proceeds of Crime Act 2002 of the Commonwealth, the State offences that will, under the Commonwealth Act, be relevant offences of this State thereby attracting the application of the Commonwealth Act. Those offences are:

(a) an indictable offence against a law of the State;

(b) an offence against section 68(3) of the Criminal Law Consolidation Act 1935;

(c) an offence against section 52, 53, 72 or 74 of the Fisheries Management Act 2007;

(d) an offence against section 99 of the Liquor Licensing Act 1997;

(e) an offence against a provision of the Lottery and Gaming Act 1936;

(f) an offence against section 47, 48, 48A, 51 or 60 of the National Parks and Wildlife Act 1972;

(g) an offence against section 28(1)(a) or 41 of the Summary Offences Act 1953.

9—Termination of adoption and amendment reference

This clause provides for the termination of the adoption of Commonwealth laws and the amendment reference by the Governor by proclamation at anytime.

10—Termination in particular circumstances

This clause provides specific circumstances in which the Governor may terminate adoption 1 and the amendment reference by proclamation. Those circumstances are—

(a) if the Commonwealth Parliament enacts an express amendment of the Proceeds of Crime Act 2002 of the Commonwealth that, in the opinion of the Governor, is inconsistent with the fundamental attributes of the unexplained wealth provisions;

(b) if the Commonwealth Parliament enacts an express amendment of section 14G or 14J (about rollback), or Division 2 of Part 4-3 (about sharing proceeds), of the Proceeds of Crime Act 2002 of the Commonwealth.

11—Effect of termination of amendment reference before termination of adoption 1

This clause makes it clear that the separate termination of the period of the amendment reference does not affect laws already in place. Accordingly, the amendment reference continues to have effect to support those laws unless the adoption is also terminated.

12—Regulations

This clause provides that the Governor may make regulations for or with respect to any matter that by the measure is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to the measure.

Schedule 1—Related amendments

Part 1—Preliminary

1—Amendment provisions

This clause provides that in this Schedule, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Criminal Assets Confiscation Act 2005

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

This clause amends section 209 to make payment into the Victims of Crime Fund subject to the sharing of proceeds under the National Cooperative Scheme on Unexplained Wealth established by the Intergovernmental Agreement on the National Cooperative Scheme on Unexplained Wealth.

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

This clause amends section 209A to make payment into the Justice Rehabilitation Fund subject to the sharing of proceeds under the National Cooperative Scheme on Unexplained Wealth established by the Intergovernmental Agreement on the National Cooperative Scheme on Unexplained Wealth.

4—Insertion of Part 7 Division 3A

This clause inserts new Division 3A into Part 7 providing for the sharing of forfeiture proceeds with other jurisdictions in accordance with the National Cooperative Scheme on Unexplained Wealth established by the Intergovernmental Agreement on the National Cooperative Scheme on Unexplained Wealth.

Forfeiture proceeds are proceeds arising from a confiscation, forfeiture or payment under the Criminal Assets Confiscation Act 2005, section 9 of the Serious and Organised Crime (Unexplained Wealth) Act 2009 or a prescribed law.

Forfeiture proceeds are shared with other jurisdictions that have made a contribution (within the meaning of the Intergovernmental Agreement on the National Cooperative Scheme on Unexplained Wealth) to the forfeiture of the proceeds. Proceeds are shared in equal proportions unless the CJC subcommittee makes a unanimous decision that other specified proportions are to apply. Proceeds may also be shared with non-participating jurisdictions and foreign jurisdictions. The balance of forfeited proceeds that remain after payment is made to other contributing jurisdictions is to be paid into the Victims of Crime Fund or the Justice Rehabilitation Fund (for forfeiture proceeds of a prescribed drug offender).

Part 3—Amendment of Serious and Organised Crime (Unexplained Wealth) Act 2009

5—Amendment of section 45—Credits to Victims of Crime Fund

This clause amends section 45 to make payment into the Victims of Crime Fund subject to the sharing of proceeds under the National Cooperative Scheme on Unexplained Wealth established by the Intergovernmental Agreement on the National Cooperative Scheme on Unexplained Wealth.

Debate adjourned on motion of Hon. I.K. Hunter.

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