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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2024-06-18 Daily Xml
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Bills

Criminal Assets Confiscation (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 June 2024.)

The Hon. J.M.A. LENSINK (15:29): I rise to place some brief remarks on the record in relation to this legislation that amends the Criminal Assets Confiscation Act 2005, which obviously has the purpose of managing the confiscation of the proceeds and instruments of crime and has been in operation for some time. This legislation has been needed to be dealt with in a fairly forthright manner due to it being a fairly important piece of the Criminal Assets Confiscation Act and its operation being very important to ensure that justice is carried out in the way the community expects.

I note that this legislation was introduced to the House of Assembly and went through there in the previous sitting week, particularly the debate in the House of Assembly on 6 June 2024, when Mr Teague, the member for Heysen, as our lead speaker and shadow attorney in these matters spoke thoroughly in support of this legislation. There has been a review of the act, and so that is where these provisions have arisen from. I note that it is in part to ensure that police practice and the statutes line up so that the intent of the legislation is valid.

There are two particular areas of relevance from the Criminal Assets Confiscation Act relating to freezing orders and to warrant seizures and forfeiture of property, which are two separate processes and sit within separate sections of the act. I will have a couple of questions for the Attorney during the committee stage in relation to the targeted consultation that was to occur between the houses, but, yes, I do understand that police practice over time needs to be lined up with the courts.

These are clearly important matters in that those who obtain assets from the proceeds of their activities should not be able to utilise those for areas in which the community does not see fit. With those brief remarks, I indicate that we will be supporting this piece of legislation. We will consider the amendments that are before us as well.

The Hon. F. PANGALLO (15:33): I rise to speak on the Criminal Assets Confiscation (Miscellaneous) Amendment Bill. I support the bill brought by the government in rectifying the issue relating to warrants pursuant to section 172 of the act and further amendments to streamline the process of freezing and restraining orders.

Whilst the assets confiscation legislation is front and centre in the chamber, I had hoped to provide an amendment designed to reduce the burden on the government and the taxpayer-funded Legal Services Commission by allowing restrained property to be used for the purposes of legal fees. Unfortunately, I gather that the government, opposition and other crossbenchers have indicated they will not support it, so I will not be moving it, but I did receive some positive comments about it. They just did not have enough time to fully consider it on this occasion.

For context, it is no secret that government-funded agencies like the Office of the Director of Public Prosecutions and the Legal Services Commission are under the pump at the moment. We have independent reports into workplace experience at the DPP, describing conditions as, and I quote, 'unacceptable, unreasonable and unsustainable' and 'ill equipped to manage the realities of a modern DPP'. In the budget just gone, an additional $4.8 million was announced for the DPP to address some of these concerns. Similar workplace complaints are heard from within the walls of the Legal Services Commission.

The high quality and hard work of these organisations and their staff in continuing to deliver services to the people of South Australia, frequently in challenging circumstances, must be acknowledged. Operation Ironside created a huge burden on the criminal justice system and continues to result in a significant influx of complex criminal cases. As a result, the state government in its 2022-23 budget announced an additional $8.8 million in funding to the DPP and courts to manage Ironside-related matters. On 5 January 2023, the government announced a further $13.2 million in funding to boost the DPP and courts over four years to manage Ironside. The Attorney-General, in the announcement, stated:

Operation Ironside is one of the most significant criminal investigations undertaken in the history of South Australia's Criminal Justice System.

The level of expertise and resources required through all facets of the criminal justice system are unprecedented.

This funding will help ensure that the wheels of justice run smoothly, and each case is given the attention it deserves as matters progress through the courts.

The Treasurer further opined:

It's vital that the DPP and criminal justice agencies receive the funding needed for complex cases to ensure an appropriate outcome for the community, police and the courts.

The most noteworthy content of the announcement, however, was that $38 million worth of assets had been confiscated by SAPOL on Operation Ironside matters. This is in addition to the likely hundreds of millions worth of assets confiscated or restrained annually.

This brings me to the amendment I would have moved. Where does this money go? In the 2022-23 financial year, the Legal Services Commission funded $27.1 million of external solicitor work through the legal aid panel. The criminal law community would have no quarrel with me making the statement that the grants of funding provided to external solicitors to take on legally aided files are well and truly poor.

A guilty plea in the Magistrates Court, including taking instructions, reading the brief of evidence, all preparation and time in court, pays $304. In New South Wales, it is $1,429. A guilty plea in the District Court or Supreme Court, including taking instructions, reading the brief of evidence, all preparation and time in court, pays $1,389. In New South Wales, it is a minimum $7,500. These files take days and weeks of work, and on the basis that a solicitor applies for a matter to be classified as complex, like Operation Ironside matters, there is still an underwhelming amount of additional funding provided.

It is for this reason that a large proportion of competent solicitors and barristers are either not on the legal aid panel or knock back files from Legal Services. It is all very well from the ivory tower of government to say there is plenty of funding and that the rates of legal aid are adequate, but they are not. Criminal law is complex, and it is only when you speak to those in the industry that you realise the quality of representation would be better with changes like this.

Snide remarks that lawyers are paid too much already show the naivety of those who have never practised law or worked on a matter under a grant of legal aid. It is no wonder lawyers refuse to take files at the current rates of legal aid, because, with the amount of work that is expected to give a file the attention it deserves, they would end up being paid less than the minimum wage.

Interstate, both New South Wales and Western Australia have longstanding provisions within their criminal assets confiscation and proceeds of crime legislation that allow the court to order that reasonable legal expenses associated with the defence of criminal charges be paid out of a restrained property. As a state that as a model litigant upholds the rule of law and the presumption of innocence, why should restrained property not be able to be used to fund legal fees, or is it the case that South Australia no longer adheres to the principle of innocent until proven guilty?

My amendment sought to replicate the interstate legislation by inserting a clause into section 27 of the act to allow for reasonable legal expenses to be ordered to be paid out of restrained property, and no, this would not allow an accused to hire five King's Counsel through their restrained assets. The judiciary would, on a successful application, decide on the basis of complexity what reasonable legal expenses would be required.

These changes, supported by the Law Society's Criminal Law Committee, would have: (1) reduced the burden on the government to fund externally granted legal aid; (2) reduced the burden on the Legal Services Commission, both in-house and for external grants; (3) increased the supply of solicitors and barristers; (4) reduced the burden on the courts as a result of an increased supply; (5) increased the calibre of legal representation; and (6) allowed for the reallocation of the funding to other areas, such as forensic science, psychology and court programs.

Rather than funding legal representation through the public purse, why not allow seized property to be used to pay for it? Would that not reduce the ever-increasing burden on the state? Would that not actually be a way to help the community, to allow the public purse to be diverted to the courts, mental health, housing, rehabilitation or hospitals?

This amendment to the government's bill would have been greatly beneficial to the administration of justice, would have eased funding burdens and would generally provide a better quality of representation in our criminal courts. It is disappointing to see those in the chamber unsupportive of what is positive legislative reform. With those closing remarks, as I said, I will not be moving my amendment and I will be supporting the bill.

The Hon. C. BONAROS (15:43): I rise to speak on the Criminal Assets Confiscation (Miscellaneous) Amendment Bill 2024. The government has indicated that this is the first of two bills it plans to introduce this term to enhance the effectiveness of our legal framework in seizing criminal assets, following the review tabled in 2021, and implementing all the recommendations of that review is of course another one of those election commitments to be ticked off the list by this government.

I understand, based on the briefings I have had, that this is mostly uncontroversial in terms of its scope, but it does address a very pressing matter. The urgency of this bill can be attributed, as I understand, to the recent decision of the Chief Justice, who brought into question the validity of historical warrants authorising the seizure of property under section 172 of the act. In the absence of written reasons in that case, I am relying on the advice of the Attorney's office that retrospective amendment is required to avoid an onslaught of applications from many individuals who have had their assets confiscated and, ultimately, forfeited under warrants of seizure rather than via freezing orders, over the past 19 years.

As noted by the prosecutor in that case, the consequences could be drastic—potentially in the hundreds of millions of dollars. In terms of the briefings I have had, I have been assured that both methods would have the same impact on the defendant, so the act intends to ensure through this bill that criminals, more often than not those involved in organised crime and drug dealing, do not profit from their illegal activities.

Upon conviction, as we know, seized funds are allocated to the Victims of Crime Fund or, for drug-related crimes, to the Justice Rehabilitation Fund. We know how much successive governments have relied on those funds. Fortunately, or unfortunately, I have been here long enough to remember when the latter fund was established and the undertakings, agreements, decisions and legislative reform that was made in terms of what the purpose of that fund should be (or is) and how those moneys should be spent. It was quite a contentious debate at the time.

I think the former Attorney-General, the Hon. John Rau, was initially asking for that money effectively to go towards propping up the Courts Administration Authority, and these are moneys that had come from confiscated assets. They were the proceeds of crime, and specifically we were talking about drug-related crimes as well. There was a lot of negotiation to and fro about how that money would be divided, first between the Victims of Crime Fund and the Justice Rehabilitation Fund, and the purposes for which they would be levelled.

We all know what the Victims of Crime Fund does, but it has been pretty difficult to get some straight answers out of any government—and I am not pointing the finger directly at this one, because I had these discussions with the former government as well—about how that money is allocated through the Justice Rehabilitation Fund. I was in those discussions and those negotiations and I was here when that bill was passed, and I do know that we had lengthy debate about the need for that money to go towards appropriate rehabilitation services in our prisons.

I guess on that front I have referred today to the budget papers. We can keep adopting this practice of building more prison beds—352 have been allocated, I think, in the new budget—because our prisons are at capacity, but unless and until we acknowledge that we cannot just lock up people and leave them there without appropriate access to services, then they are not doing themselves, the community or society any good.

I have had lengthy discussions with this Attorney-General—and I will seek to clarify from him—on when we can expect the next lot of changes that surround criminal assets confiscation and how we will better allocate those funds. Giving a person who is incarcerated a pamphlet (or giving a person facing court on serious charges a pamphlet), spending that money just on research and not directing it towards specific rehabilitation and treatment programs is not achieving anything at all.

I referred earlier in question time today to a new report that was released I think nationally, which shows that 70 per cent of perpetrators of domestic violence have already had dealings with the criminal justice system. They are known to the criminal justice system and many have served time in prison, and there is absolutely nothing to be gained from simply locking up people—I am all for what this bill stands for, but if we are going to lock people up we need to ensure they come out rehabilitated at the other end.

I have a particular gripe with our current state of laws that does not allow a person who is on remand to have access to any rehabilitation services while they are incarcerated on remand. We know that because of the delays in our criminal justice system a person might be on remand for 12, 18 or 24 months. You have, effectively, a captive audience sitting there right in front of you. They cannot go anywhere: they are incarcerated, they are in jail and for that period they will have access to none of those programs.

Guess what happens then? That person gets released from jail, probably because they have served their sentence effectively for the time that they have been on remand and they get given $50 to catch a cab to God knows where, if they were not eligible for bail or home detention in the first place, only to reoffend again. That is the biggest failure of our justice system. The old mentality of—and I am not suggesting this is one that this government has adopted—rack 'em, pack 'em, stack 'em has let us down in terms of the way that we rehabilitate our prisoners.

I know that one of the core functions of the Justice Rehabilitation Fund is not to prop up the courts, it is not to do research into things that we already know, it is to provide those sorts of labour-intensive programs that actually help people get better. We all know that there are people who are not going to get better, and they are going to come out and they are going to do exactly the same, or they are not going to come out at all for a very long time—and that is all well and good, that is where they deserve to be—but for those individuals who stand a chance of being rehabilitated in prison, there is absolutely no logic in having them locked up for that period of time and not having access to programs that could actually help them.

It could help them come out the other end in a better way than when they went in. It certainly will not leave them with the trajectory they are facing now, which is to come back to the exact same life that they had beforehand because there has been no assistance offered to them. That is my problem with the way that we spend money from the Justice Rehabilitation Fund, and that is my problem with the way that we deal with the justice system overall.

When it comes to the confiscation of assets, that is something that I am on the record as having long supported, and I still support it. I understand the urgency for this bill and, indeed, the need for this piece of legislation, given what has been explained to us, but I put the Attorney on notice, once again, that this is not just an ad hoc fund to be used wherever we see a hole in funding. This is supposed to be very purpose-driven funding. We know that there is a lot of money in there, and we know that that money could be going to a lot of community good ultimately by serving those people who are incarcerated and by ensuring that they get the right rehabilitation services they need.

I have had these discussions, as I said, with the Attorney at length. I have had them with members of the Law Society. I have had them with members of the judiciary. I have had them with members of the Youth Court. I have had them with members of the legal profession overall. I have not found one person who disagrees with the view that I have just put. Again, I put the Attorney on notice that when that next bill comes I will certainly be seeking some further reassurance from this government that those funds are used appropriately so that people with drug-related crimes, and other crimes, actually have access to the sorts of services they need.

Make no mistake: if you have the opportunity to speak to somebody who works in those settings, they will laugh at you if you ask them the question whether there are appropriate rehab services being provided in our jails—they will laugh at you. I have had those discussions with people who work in Corrections, in the adult jurisdiction and in the minor jurisdiction, and they say to me, 'Connie, there is no way in hell we could provide the sorts of services that these prisoners need or people on remand need under the current funding arrangements.'

It was even scarier coming from those—indeed, anonymously, I did have conversations with people who work in Corrections in the youth jurisdiction, and that was even more frightening because the worst thing we know you could do to a youth is stick them in a cell and leave them there until they have learnt their lesson, presumably, and release them without access to appropriate services.

If we want to start somewhere in terms of dealing with our crime rates, then we need to be looking beyond just building more beds to fit more people who we are incarcerating and actually provide them with some sort of services, whether that is psychological services, rehabilitation services, drug treatment services, whatever it is that they need to get them on the straight and narrow.

When we are talking about the individuals who are covered by this bill, they are not necessarily the ones who are going to need the services because if we think back to when this legislation was first introduced into this place, this was about focusing on the kingpins—the people who always get away with it, the people at the top of the food chain—and ensuring that their assets were confiscated.

But their assets have been seized in the first place because of drug-related crime, so if there are those people lower down the food chain who are peddling the drugs and doing whatever else they are doing, they are there because of the people at the top of the chain who these bills are focused at, and they are the assets that have been seized from criminal organised activity, and those assets go into those funds, and those funds should be used for the purposes for which they were intended.

Like I said, this is not the bill for those changes now. I am continuing to have those discussions with the Attorney and I hope that this government is genuinely amenable and open to further considering changes around the way those funds work. But, as I have done previously, I have already said to the Attorney that I will not hesitate to bring a bill into this place to do just that, and I would like to see what the response is going to be then in terms of ensuring that the Justice Rehabilitation Fund is adequately directed towards the purposes for which it was designed.

The Hon. S.L. GAME (15:56): I rise briefly in support of this bill which modifies the existing law for seizing and confiscating assets from criminals. One Nation supports any measures that disrupt criminals from conducting illegal activities that harm the community. After reviewing the amendments to the Criminal Assets Confiscation Act 2005 back in 2021, the Malinauskas government made an election promise to adopt the subsequent recommendations. Police can now apply for freezing orders on a category of accounts if they suspect someone is moving money around multiple accounts.

The initial freezing order will be shortened to seven days, but magistrates can extend it if they believe a restraining order application is likely or ongoing. Clarification on restraining orders for prescribed drug offenders makes it clear that restraining orders can target property already subject to a similar order, potentially preventing the criminal from accessing funds through alternative means. The amendment concerning disposing of forfeited property clarifies that the administrator can dispose of this property by selling it, destroying it, or any other appropriate method.

To further assist SAPOL, warrants issued before this legislation change that aimed to seize money in bank accounts or intangible assets like debts owed will now be considered valid. This protects law enforcement actions taken under the previous law. One Nation supports expanding police powers to freeze and seize assets suspected to be obtained from criminal activity. I also note safeguards included in this bill need to be effective in minimising disruption to innocent South Australians.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:58): I thank all those who have contributed on this bill and acknowledge that this is, as occasionally happens, a bill that has been put in by events that have occurred that have needed a reasonably quick response. I can confirm for the Hon. Ms Bonaros that there are further amendments to this regime being contemplated, and we can expect further legislation in this area.

I thought I would put on the record a response to particularly comments that were raised by the Hon. Frank Pangallo, who had foreshadowed moving an amendment and gave a detailed explanation about what the amendment would have done in relation to the reasonable legal expenses of a person. The Hon. Frank Pangallo has indicated he does not intend to move the amendment. He understands the majority of the rest of the chamber will not be supporting it and certainly the government would not be supporting the Hon. Frank Pangallo's amendment.

I will give more detail, but it is basically because in South Australia we used to have the regime the Hon. Frank Pangallo was intending to put into the bill and it was, quite frankly, an abject disaster. The amendment that was filed but will not be moved, as the Hon. Frank Pangallo has outlined, would have allowed a person whose property is restrained to use those restrained assets to pay for their reasonable legal expenses.

Current section 27(2)(d) of the act effectively prohibits a person whose property is restrained from directly using the restrained property to fund legal expenses incurred in connection with proceedings under the act or for proceedings for an offence against the law of the commonwealth, a state or a territory. There is, as I have said, an extensive history behind the current prohibition on the defendant directly using restrained assets to pay for legal fees.

The Criminal Assets Confiscation Act 1996 came into effect on 7 July 1997 and contained specific provisions for the payment, out of restrained funds, for 'legal costs on a reasonable basis', which is wording that used to be in the act and is very similar to the amendment that has been filed but will not be moved by the Hon. Frank Pangallo. This particular clause that used to be in the act led to extensive litigation, and there are many examples of just how problematic the regime with that wording became.

In the 1998 matter of Petropoulos just under $100,000 was restrained. Before the trial the accused argued that the court had no jurisdiction to hear the case because the cannabis in this particular matter was intended for sale in New South Wales and not South Australia. The accused was represented by a QC and junior counsel in the Court of Criminal Appeal and in the High Court. The High Court refused leave. More than $40,000 had already been spent on legal expenses, there had been no trial on the merits of the case and the accused had lost at each stage of the argument.

This problem was not confined to South Australia. There are some more spectacular examples in other states. The most cited example is likely the Queensland case known as Operation Tableau, in which 12 defendants successfully obtained access to $1.2 million held in an overseas bank account to fund legal advice. The defendants eventually pleaded guilty, but the entire $1.2 million was spent on the preliminary hearing and pre-trial litigation.

The issue of restrained assets and legal expenses was examined in great detail by the Australian Law Reform Commission in 1999. In its report, Confiscation that Counts, the ALRC reviewed the general scheme relating to the release of funds for legal expenses—like that which was in place in South Australia at the time and like that which was proposed by the Hon. Frank Pangallo—and the Australian Law Reform Commission concluded that it was unsatisfactory. The Australian Law Reform Commission concluded, and I will quote:

… the proposition that restrained property should be able to be made available to fund a defence to the very proceedings that would, in the event of a finding against the defendant, lead to the forfeiture or possible forfeiture of that property cannot, in the view of the Commission, be sustained.

The most serious defects found in the South Australian position, as it was at the time and as it would revert to if the Hon. Frank Pangallo were to succeed with the amendment he has filed, on the evidence of the Australian Law Reform Commission, include:

3.11.1…funds are not infrequently dissipated on unmeritorious proceedings as there is no mechanism to limit the type of proceedings to be funded, and a defendant who is aware that his or her assets may be confiscated is not likely to exercise judgments exercised by ordinary prudent litigators;

In paragraph 3.11.2 it concludes that:

…it leaves open the potential for persons with restrained assets to seek the most qualified and expensive legal advice available; and

3.11.3… after available assets have been expended on committal and interlocutory litigation, defendants either plead guilty or apply for legal aid to fund the trial.

Following the Australian Law Reform Commission report, the South Australian legislation was amended to implement largely the same model as suggested in that report to address legal expenses via the Legal Assistance (Restrained Property) Amendment Act 2001. This amendment act introduced a scheme to provide legal funds directly to the Legal Services Commission by way of the restrained assets.

The Legal Services Commission undertakes an assessment and reports to the court where the defendant has financial means, and where the defendant has means they are to fund their own defence. Where the defendant does not have the means and thus qualifies for legal aid in the same way as other defendants, the Legal Services Commission can fund the defence out of the restrained assets. If the restrained assets are exhausted, the defendant may be eligible for legal aid in the same way as anyone else. If the restrained assets are not exhausted in the defence, the remaining assets continue to be restrained and are subject to forfeiture in the same way as any other restrained assets.

The legal assistance scheme ensures that restrained assets are not needlessly expended in lengthy litigation as well as ensuring the validity of the legislation. This model of funding legal defences was retained in the bill that was introduced in 2004 to create the current act, and, importantly, remains in the current act. It would therefore have not been the government's intention to essentially return to the past scheme that was wholly unsustainable and that we do not think would have properly met the needs of justice in South Australia. Having said that, I commend the bill to the chamber.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. C. BONAROS: I have a point of clarification. I think it has been clarified, but we did pass some laws recently in relation to unexplained wealth and I just wanted to confirm that this bill and that bill are not interrelated at all in terms of their scope.

The Hon. K.J. MAHER: My advice is that that is correct. That is a completely separate act and not related to what we are doing today.

The Hon. J.M.A. LENSINK: I mentioned in my second reading speech—the Attorney may not have heard it—that I was interested in learning more about the consultation that was to occur between the houses given that this piece of legislation has been put through with a reasonable amount of haste. Have there been concerns that have been raised in relation to any aspects of it? Is the Attorney able to outline some more details for the chamber?

The Hon. K.J. MAHER: I am advised that in between the chambers it has been provided to the Law Society, the Bar Association, the Legal Services Commission, the ALRM, the Chief Justice, the Chief Judge, the Chief Magistrate, as well as the State Courts Administrator. We are not aware of any responses to that.

The Hon. J.M.A. LENSINK: Can I just clarify? We are not aware, but they have been written to and asked their opinions, those sorts of things?

The Hon. K.J. MAHER: I can confirm that, yes, that is my advice.

The Hon. C. BONAROS: Just going back to the contribution I made in the second reading, can the Attorney confirm when we can expect to see the next raft of changes surrounding the remainder of the recommendations of the 2021 review and implementation of those?

The Hon. K.J. MAHER: As I outlined briefly in my second reading sum-up, we do intend to introduce further legislation. My advice is it is being worked on at the moment. I do not have a hard and fast date, but in the not-too-distant future.

The Hon. C. BONAROS: What, if anything, as part of that work is considering the issue of providing services to those who are on remand but not yet convicted?

The Hon. K.J. MAHER: There are ongoing discussions, I am advised, about what form rehabilitations might take and who might benefit from those, including which prisoners. I do not have information on that at the moment. As I said, there is an intention for further work to look at implementing recommendations from the review that previously occurred in this area.

Clause passed.

Remaining clauses (2 to 7), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (16:12): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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