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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2025-03-04 Daily Xml
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Criminal Assets Confiscation (Review Recommendations) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 February 2025.)

The Hon. J.M.A. LENSINK (16:50): I rise to speak on behalf of the opposition and indicate our support for the Criminal Assets Confiscation (Review Recommendations) Amendment Bill 2025. This legislation plays a role in ensuring that crime does not pay. The bill implements key recommendations from the statutory review into the prescribed drug offender provisions of the Criminal Assets Confiscation Act 2005. While previous amendments address some immediate concerns, this bill ensures that all necessary reforms are enacted to maintain the act's integrity and effectiveness.

One of the key provisions of this bill is the introduction of measures allowing the Chief Recovery Officer to assist with asset forfeitures using the powers of the Fines Enforcement and Debt Recovery Act. This reform enhances efficiency by utilising the most experienced agency for asset management and recovery, thereby reducing the administrative burden on the Office of the DPP.

Additionally, the bill ensures fairness in asset confiscation by aligning prescribed drug offender confiscations with other forfeiture processes. This recognises that prescribed drug offender cases now constitute the majority of all confiscations, particularly following significant law enforcement operations such as Operation Ironside. Treating these cases consistently with other confiscation improves procedures generally.

This legislation also makes amendments to the Justice Rehabilitation Fund, which receives proceeds from confiscated assets and funds important initiatives such as rehabilitation and victim assistance programs. Administrative costs will be deducted before funds are transferred to the Justice Rehabilitation Fund, which will assist in ensuring that operational costs effectively fall less on taxpayers.

The bill also has compliance and enforcement provisions by introducing new obligations for offenders to disclose any third-party interests in confiscated property, which would have the effect of preventing offenders from exploiting loopholes by falsely claiming external ownership to evade forfeiture. It also extends the obligations of freezing orders beyond financial institutions to ensure that all relevant parties comply with asset seizure directives.

To enhance enforcement mechanisms this bill increases penalties for noncompliance so that individuals who attempt to undermine the asset confiscation process face additional consequences. This also revises procedural timelines, including reducing the time financial institutions have to respond to requests for information from 14 days to a range of three to seven business days, which will improve timeliness of law enforcement agencies.

Broadly speaking, the legislation improves the legal framework to ensure that crime does not assist people to obtain financial rewards, provides law enforcement with tools to confiscate assets, supports offenders' rehabilitation and improves the justice system. With those comments, I support the passage of the bill and look forward to the committee stage.

The Hon. S.L. GAME (16:53): I rise to speak on the Criminal Assets Confiscation (Review Recommendations) Amendment Bill and offer my in-principle support. The main intent of the bill is to prevent commercial drug offenders from profiting from their crimes, which is a worthwhile and necessary aim, given the lucrative illegal drug trade in this state and across the country. However, the forfeiture of all property is a significant consequence that was intended to target persistent or high-level drug offenders involved in large-scale commercial operations, not backyard operators growing cannabis plants for predominantly personal use.

While I understand that the line has to be drawn somewhere, under the current Controlled Substances Regulations 20 cannabis plants is considered to be a commercial quantity and, as a result, offenders with three convictions in this category potentially could be liable for forfeiture of all their property.

It should be noted that the government's proposed amendments will guard against convictions being counted from the same course of offending. Nevertheless, the Law Society has suggested there should be amendments to the threshold for commercial drug offences and prescribed drug offenders to avoid backyard operators being captured by the harsh consequence of having all their property confiscated.

Profiting from drug addiction in the community should always be punished to the full extent of the law, but we should also endeavour to ensure that the punishment fits the crime, that the punishment is proportionate, fair and equitable, and not excessive or unreasonable. It is difficult to see how someone facing three convictions for possessing a commercial quantity of heroin or amphetamine is equivalent to someone facing three convictions for growing 20 cannabis plants.

Both of these are serious crimes that deserve punishment and condemnation, but should both offences be treated the same, with both being subject to the forfeiture of all property? That being said, I will support the bill in the interests of protecting the community from the proliferation of the drug trade but will continue to question whether such measures are constructed more to raise revenue rather than to achieve justice.

The Hon. J.S. LEE (16:55): I rise today to make a contribution to the Criminal Assets Confiscation (Review Recommendations) Amendment Bill 2025. This bill will implement a number of changes recommended by the statutory review into the prescribed drug offender provisions of the Criminal Assets Confiscation Act 2005. Some urgent changes to the act were passed by parliament last year with the remaining recommendations before us in this bill today, along with changes suggested by South Australia Police.

This bill will ensure that the Criminal Assets Confiscation Act remains effective and up to date, to ensure that criminal offenders cannot profit from their crimes. Some of the key recommendations implemented in this bill include allowing for penalty collection to be dedicated to the Chief Recovery Officer and Fines Enforcement and Recovery Unit to free up resources within the Office of the Director of Public Prosecutions. Clause 12 will ensure that costs for the administration of the act, such as repaying the Office of the DPP for costs incurred in the forfeiture of process, will be provided for first, with the balance of the proceeds paid to the Justice Rehabilitation Fund.

As honourable members would know, the Justice Rehabilitation Fund, which receives proceeds from the prescribed drug offender confiscation, funds programs aimed to divert and rehabilitate offenders, including within the prison population. The fund currently assists the Department for Correctional Services to provide an overall uplifting and alcohol and other drug support services, including for programs run by the Aboriginal Drug and Alcohol Council and Offenders Aid and Rehabilitation Services of SA Inc.

The fund also supports abuse prevention programs, victims' programs and the Carly Ryan Foundation. This bill will bring it in line with the process for ordinary confiscations, which are paid into the Victims of Crime Fund and ensure that the costs of dealing with confiscated assets from prescribed drug offences are not a burden on the taxpayer.

Other changes include allowing the court to exclude the property of a prescribed drug offender from being forfeited to the Crown, based on their cooperation, and adds a requirement that the courts must be satisfied the cooperation was not already taken into account when the person was sentenced for the offences. I understand this would provide added incentive for cooperating with law enforcement but would prevent double dipping.

The bill will also increase the number of penalty provisions in the act from $20,000 to $100,000. One of the other additional amendments was to ensure that the provisions requiring compliance with freezing orders apply to all persons and not only to financial institutions. There are a number of changes requested by SAPOL to assist them to continue to use every available avenue to tackle serious crime in our community and prevent criminals from profiting from their offending. With those remarks, I commend the bill to the chamber.

The Hon. T.T. NGO (16:59): I rise to speak on the Criminal Assets Confiscation (Review Recommendations) Amendment Bill 2025. The Criminal Assets Confiscation Act 2005 allows the government to seize property from prescribed drug offenders and transfer it into the Justice Rehabilitation Fund. The Justice Rehabilitation Fund is primarily funded through money and assets seized from criminal activities and redirected to programs and facilities that help offenders, victims and crime prevention efforts. This change aligns with how assets from non-drug offenders are used to fund the Victims of Crime Fund.

The bill will improve administration, allowing certain powers to be delegated from the Director of Public Prosecutions to the Chief Recovery Officer in the Fines Enforcement and Recovery Unit. This will enable a portion of the confiscated assets to be used to cover administrative costs before the remainder is placed into the Justice Rehabilitation Fund. A recent review of the act led to several recommended changes, many of which were approved in a bill last year, including:

expanding the definition of 'government custody' to include home detention;

clarifying that prescribed drug offenders can still have effective control over property, even if it is subject to a restraining order; and

confirming that forfeited property can be destroyed when necessary.

The key changes in this new bill incorporate further amendments suggested by South Australia Police, which include expanding the power to freeze bank accounts belonging to drug offenders and that banks will also have less time to provide a response to police requests about the offender's assets. In today's world, money can be moved instantly, making it much easier for criminals to hide assets. The bill allows police to question offenders about any third-party interests in confiscated property. These changes will help to ensure that innocent people are protected, while preventing offenders from making false claims simply to delay investigations.

The bill confirms that multiple convictions at the same time will count towards determining someone as a prescribed drug offender. This change aligns with the Supreme Court's decision in the Director of Public Prosecutions v Donnelly, which clarified that multiple convictions occurring at the same time should be considered together when determining if someone qualifies as a prescribed drug offender under the law. Stronger penalties will be introduced for noncompliance. Police will also have more time—60 days instead of 25 days—to return seized property that does not end up being confiscated.

These amendments will help to facilitate a more effective and efficient Criminal Assets Confiscation Act. They ensure that drug traffickers lose their profits, while seized funds can be used to address the many social harms caused by drug crime. We all know how drug-related crime fuels violence, addiction, homelessness and mental health issues, all of which place enormous pressure on health care, law enforcement and social services. Addressing and improving the social harms of drug crime is essential. I therefore hope members of the chamber support these new amendments.

The Hon. R.P. WORTLEY (17:04): The Criminal Assets Confiscation Act 2005 allows the state to confiscate the property of prescribed drug offenders (PDOs) and transfer it into the Justice Rehabilitation Fund. A number of recommendations falling out of the review of the operation of the act were passed in a bill before this place last year, including amendments to provide that home detention is within the definition of government custody, to clarify that property can be under the effective control of a PDO even if it is subject to a restraining order, and to clarify that forfeited property can be destroyed.

The new bill also contains amendments made at the suggestion of South Australia Police, who assist the Office of the Director of Public Prosecutions in the operation of the act. There are a number of procedural amendments, including the scope of freezing orders placed on banking accounts which belong to offenders, as well as a reduction of timeframes in which banks have to respond to notices from police with information as to the assets it holds in relation to PDOs. This comes in response to the instant nature of banking, which has occurred since the beginning of this act, in the mid 2000s, where money can be transferred instantly within and outside of Australia, and PDOs will do so to try to conceal their true assets.

Similarly, a new power to demand answers from offenders as to legitimate third-party interests in any confiscated assets forms part of this bill, to ensure that the property of innocent parties is protected whilst not sending law enforcement on a wild goose chase following up warrantless claims made by PDOs.

Amendments which will increase the effectiveness and efficiency of the scheme include the delegation of certain powers from the Office of the Director of Public Prosecutions to the Chief Recovery Officer of the Fines Enforcement and Recovery Unit and an amendment that will allow the costs of administering the act to be taken from the forfeited assets prior to the remainder being placed into the Justice Rehabilitation Fund. This is identical to how assets seized from other non-drug offenders are used to pay administration costs prior to being placed into the Victims of Crime Fund.

The Justice Rehabilitation Fund is a dedicated fund for the provision of programs and facilities for the benefit of offenders, victims and other persons, which will further crime prevention and rehabilitation strategies. The bill also clarifies that simultaneous convictions will be taken into account for the purposes of the identification of a prescribed drug offender, which echoes the reasoning of the Supreme Court of South Australia in the matter of the Director of Public Prosecutions v Donnelly.

Several noncompliance penalties under the act are increased in the bill, in recognition that often it is high-value assets being dealt with and penalties must reflect a punitive outcome. Following feedback from SAPOL, it also extends the time for police to return property that is initially seized but has not become the subject of a forfeiture order and can be returned to the owner from 25 to 60 days.

The bill keeps the CAC Act effective and efficient. It supports the aim of the scheme to both hit commercial drug offenders where it hurts the most—the hip pocket—and use these seized funds to address the social issues and their profiteering impacts. In that, I support the bill.

The Hon. C. BONAROS (17:07): I rise very briefly to speak to this bill, which we know is the result of the CAC review into the legislation that was passed some years ago, and echo many of the sentiments that have been expressed across the chamber today.

For those who were around when these laws were first introduced around the Justice Rehabilitation Fund (JRF) and the way that fund is used, I note that from the second reading, following questions that I put to the Attorney's department, we know that those funds currently—after what I think it is fair to describe as some negotiation at that time—are being used in terms of rehabilitation when it comes to the prison population, the overall uplifting of alcohol and drug support services, including Aboriginal Drug and Alcohol Council and Offenders Aid and Rehabilitation Services, prevention programs, victim programs and programs like those that are run by the Carly Ryan Foundation.

These are all critically necessary and important, particularly given—and this goes back to the original debate on this legislation—that often those who are convicted of offences, who end up behind bars, are not necessarily those who are at the top of the pecking order when it comes to drug offences in particular. So the proceeds of any assets that are confiscated ought to be going towards providing what are critical services, when it comes to that sort of offending, for those who do not sit as high on the pecking order.

I will foreshadow a question to the Attorney while I speak, and I guess that is just to confirm, for our peace of mind, the proportion of funds from the JRF that are actually going towards that sort of spending. The debate at the time was that we did not want these funds being spent on propping up the courts and other things. I understand that is not the case, I understand that those funds are going towards those sorts of services, but we know those sorts of services are critically underfunded at a government level.

We also know—and this is another pet subject of mine that I have raised with the Attorney—that those in prison often do not qualify. Those on remand, for instance, often do not actually qualify for the sorts of services they need before they are released back into the community, and that only serves to feed the cycle of crime. Someone may very well have served a long period in incarceration before they are released and only qualify for the sorts of services that the JRF would fund upon sentencing. They may have already served their time upon sentencing and find themselves released from prison without having had the benefit of any of those sorts of rehabilitative services.

My question to the Attorney, if he could provide it in the summing-up, is: what is the state of the fund generally and, I suppose, a confirmation that the overwhelming funds in the JRF actually go towards these sorts of rehabilitation programs and education campaigns and so forth.

I also foreshadow with the Attorney a subsequent question in relation to 56AB which, I understand, is really intended to avoid the shifting of assets and questionable claims made in relation to interests in property—basically, false claims. It does have real ramifications in relation to genuine claims of interested parties who may have absolutely no knowledge of the offending that results in the confiscation of assets.

To that extent, I query with the Attorney how we came up with the 14-day period and whether that is, in the scheme of things, considered to be a sufficient enough period to allow somebody who does have a genuine claim to have their details provided by the offender in those cases. With those words, I look forward to the committee stage of the bill.

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (17:13): I thank honourable members for their contributions during the course of the debate. I know members, particularly the Hon. Connie Bonaros, contributed in great detail when this scheme was set up some years ago.

There are a couple of questions I do not have answers for right now but I might have at clause 1, if the honourable member might repeat them. However, I think the main question she asked during the second reading stage was about the current state of the fund. I am happy to let the honourable member know that at the moment there is more coming into the fund than there is going out. My advice is that as at 31 January this year the fund had a balance of $6.1 million.

The honourable member also asked what sorts of things the fund is used to support. There are a wide range of things that the fund is used to support, and when there are funds available we review what else we can look to support, which I am pleased to say we are currently doing. The fund is currently used for programs such as:

increasing the capacity of current alcohol and other drug support services offered through the Department for Correctional Services, expanding that with the service delivery of the Aboriginal Drug and Alcohol Council and the OARS Community Transitions team;

the delivery of Aboriginal cultural programs in prisons, such as workshops through Ananguku Arts and Ngangkari Clinics;

supporting reviews of the Courts Administration Authority's Abuse Prevention Program;

supporting the Department of Human Services developing a 12-month program for a new therapeutic pathway of working with young people in the African community at risk of offending behaviour;

the Department for Correctional Services for the Victim Services Unit to keep high-risk victims of domestic violence informed of changes of circumstances in relation to a perpetrator who is currently in custody or under the supervision of DCS;

Project Connect, a Carly Ryan Foundation project to deliver online safety education sessions as part of a program educating children, their parents and communities about the risks of sex-related crimes against children perpetrated or initiated online and how to avoid those risks;

Metropolitan Youth Health with the Women's and Children's Health Network for the Supporting Parents' and Children's Emotions (SPACE) program, which provides intensive support to young parents who are in domestic and family violence situations; and

Junction, to deliver domestic and family violence prevention activities on Kangaroo Island.

After we had a community cabinet on Kangaroo Island, Junction directly let me know of the service they provide and what they could provide with only a little bit more money. That was only in recent months. I was back on Kangaroo Island to launch the program that is funded out of this, which is a remarkably good thing to be able to do, particularly in a place like Kangaroo Island where the isolation compounds for those who experience family and domestic violence.

There is also a two-year trial of the Youth Aboriginal Community Court in Adelaide. I think the honourable member, as well as other members of this place, was at the launch of it at the Youth Court in Adelaide. So there are quite a wide range of programs that may well have not been able to be implemented if it were not for this fund being set up.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. C. BONAROS: If I could just put the second question again to the Attorney in relation to section 56AB. I appreciate that there is a process that has to be gone through before we get to this provision kicking in, but a prescribed drug offender is effectively given 14 days or such longer period as may be allowed by the DPP in order to specify the contact details of anyone who may have an interest in property.

Noting that there is obviously a process that will precede that 14 days, my question is that there are inevitably going to be individuals who have a genuine claim. We are not talking about the prescribed drug offender who says, 'Seventeen people have an interest in my property,' but there may very well be a partner, family or children who do have a genuine interest and who stand to lose as a result of this. My question is: how did we arrive at the 14 days as an appropriate period, noting of course that there is a longer period that precedes that before we get to this point?

The Hon. K.J. MAHER: I am advised that it is a balancing act between providing enough time to provide that information but also making sure it is not an open-ended amount of time so that what this scheme intends can be affected. I am advised, too, that the 14 days is not a cut-off for those who may have an interest; it is the time in which the offender themselves has under the scheme to provide that information. The 14 days does not necessarily close a claim from a third party, but that is the time given to the offender to provide that information.

The Hon. C. BONAROS: Just on from that, though, in terms of the way that this operates differently from what operates now, there is an offence as well for failing to provide those details within either the 14 days or the appropriate timeframe, and that is a move from where we currently are in terms of the legislation.

The Hon. K.J. MAHER: That is correct. I am advised that is because it has been the case that offenders can tend to provide either false information or not provide the information they should, so this creates a distinct incentive to do that.

The Hon. C. BONAROS: In terms of its general application then, if I were a prescribed drug offender and I said, 'There are two people with an interest in my assets,' and we got to this point under 56AB, if I then failed to provide the details of those two individuals who I claimed had an interest in the asset, then I would potentially be liable for a penalty.

The Hon. K.J. MAHER: Again, without going into details or how the courts will have the scheme operate, yes, that is quite likely.

Clause passed.

Remaining clauses (2 to 12), 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, Special Minister of State) (17:23): I move:

That this bill be now read a third time.

Bill read a third time and passed.


At 17:24 the council adjourned until Wednesday 5 March 2025 at 14:15.

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