South Australian Bill To Make Amendments to Drug Offenders Legislation

Monday 20 November 2017 @ 9.24 a.m. | Crime | Judiciary, Legal Profession & Procedure

On Wednesday (15 November 2017) the SA Attorney General and Minister for Justice Reform,the Honourable JR Rau (the AG) introduced the Statutes Amendment (Drug Offenders) Bill 2017 into the SA Parliament to amend the Controlled Substances Act 1984 (SA) (the Controlled Substances Act) and the Criminal Assets Confiscation Act 2005 (SA) (the CAC Act).  The Bill is a further attempt to deal with the "devastating impact" of illicit drugs, particularly crystal methamphetamine (crystal meth), on the South Australian community.

Development of the Legislation and Background

The legislation is said to derive from the work of the Ministerial Crystal Methamphetamine Taskforce, which was established on 13 February 2017. That task force undertook a "community engagement process" which developed a package of 17 legislative and policy measures to respond to the concerns arising from the growing use, sale and supply of crystal meth in SA.

The crystal meth problem is recognised, according to the AG in his second reading speech, as not only being a "scourge in the city" but as being a problem also in regional and rural communities. The use of crystal meth is, in the AG's view, related to a number of "negative physical and mental health outcomes in users" supporting an extensive amount of criminal activity involved in the manufacture, sale and supply of crystal meth, including involvement in such activity by organised criminal groups. 

The various forums, online and community based, that were held as part of the task force's investigation of the matter, are said to have returned strong support for measures assisting law enforcement agencies to reduce the supply of crystal meth in the community, including more powers and resources for SA Police and the Office of the Director of Public Prosecutions to target high end dealers and organised crime.

What the Bill Does

Enhances Police Search Powers: The Bill is said to support the law enforcement agencies in their job of identification and elimination of the manufacture and supply of crystal meth by making clearer and enhancing the police powers of search. To this end the Bill amends the Controlled Substances Act to make it clear that police are able to search a person or their vehicle for illicit substances if the person is seen entering or leaving ". . . premises reasonably suspected of being used for the manufacture, distribution or storage of illicit substances, or chemicals used for the manufacture of illicit substances". In his second reading speech the AG states:

"It is vital that police are able to conduct appropriate searches of persons and vehicles where the person or vehicle has been present at a so-called 'drug house', as it is a clear indicator that persons seen entering or leaving such premises may have illicit substances such as Crystal Methamphetamine in their possession, or present in the vehicle."


Exposure of Children to Drug or its Manufacture: The Bill also proposes to amend the Controlled Substances Act  to provide that the exposure of a child to methamphetamine or any drug manufacturing processes is to be ". . . explicitly taken into account as an aggravating factor in sentencing offenders". Section 44 of the Controlled Substances Act will be amended to add the exposure of children to the list of sentencing factors listed in the section. The AG stated the reasoning behind the change as follows:

"Exposure to drug manufacture and the chemicals involved can have terrible health and other impacts on children, not only from their exposure to the toxic effects of the drugs and chemicals, but from the chaotic environment they are typically exposed to living in such situations. These children are at a higher risk of abuse and neglect, as well as the physical harm from the equipment and chemicals used to manufacture illicit drugs."

Because of the above view, it is seen as vital by the government, that if an offender is so callous as to expose children to these types of criminal activity, that this should be taken into consideration by the SA Courts when determining the offender's sentence.

Asset Seizing: The seizing assets of criminal offenders is, according to the AG, an essential tool for law enforcement to ensure that offenders do not profit from their criminal activities and ill-gotten gains. Further, it also allows for extra revenue to be allocated towards the Victims of Crime Fund and, in the case of prescribed drug offenders under the Criminal Assets Confiscation (Prescribed Drug
Offenders) Amendment Act 2016, the new Justice Rehabilitation Fund. Both funds provide valuable benefits to the community by way of compensation for victims of crime, and providing services which will assist to address the effects of drug addiction on users and the wider community.

Dealing with the administration of the seized assets from drug trafficking offenders (including crystal meth) requires the allocation of resources from the agencies responsible and there are significant costs and logistics involved in seizing, storing, selling or otherwise disposing of assets. Such assets may represent either proceeds of drug dealing (such as a sports car or an expensive motor cycle financed by drug dealing) or instruments of crime (such as the equipment used to manufacture Crystal Meth).

The Bill proposes a minor amendment to make clear the provisions of the CAC Act which deals with the costs of administering the Act and dealing with confiscated property. The CAC Act provides that existing funds seized under the CAC Act should be used to meet the costs of "administering" the CAC Act before going to the Victims of Crime Fund. The amendments made by the Bill are to the regulation making power provision of the CAC Act and will allow for the drafting of Regulations to give the office of the Director of Public Prosecution (or any other agency, if the ODPP, delegates its powers) some limited operational discretion under the Regulations in deciding if it is uneconomic or otherwise impracticable to seize certain assets from "prescribed drug offenders". This will support and facilitate the operation of the important forfeiture regime in the CAC Act. The ODPP will be able to focus its efforts where it can have the greatest impact on seizing the assets of convicted drug dealers.

Next Steps

The legislation having been recently introduced and there being only three official sitting days left in the year, will, most likely not be fully debated until the SA Parliament sits again next year.

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Sources:

Statutes Amendment (Drug Offenders) Bill 2017 and second reading speech as reported in the TimeBase LawOne Service.

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