Criminal Assets Confiscation (Miscellaneous) Amendment Act SA Commences

The Criminal Assets Confiscation (Miscellaneous) Amendment Act 2018 (SA) ("the Act") was assented on Thursday 9 August 2018, and commenced operation on 10 August 2018. The Act makes important changes to the Criminal Assets Confiscation Act 2005  ("the CAC Act").

Laws passed in 2016 (namely, the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Act 2016) allow the state government to strip "prescribed" drug offenders of all their property, regardless of whether or not it is connected to a particular criminal offence or is the proceeds of crime. This Act primarily seeks to modify these laws so that property can be excluded from the automatic forfeiture if it is not financially viable.

Background

According to the Attorney-General, in her second reading speech, the legislation retains three amendments from the Statutes Amendment (Drug Offenders) Bill 2017, which lapsed when the SA Parliament was prorogued in February 2018 before the last election [see our article here]. That Bill was put to the parliament with an additional proposed amendment that, if a person was seen entering or leaving premises which the police reasonably suspected was 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 an amendment derived in part from a recommendation of the former SA Government's "ice task force", namely the Ministerial Crystal Methamphetamine Taskforce, which was established on 13 February 2017.

The Attorney-General indicated in her second reading speech that the amendment had been excluded because in the government's view,

Specific Amendments

The Act amends the CAC Act, and includes the amendment of some provisions inserted into the CAC Act by the Criminal Assets Confiscation (Prescribed Drug Offenders) Amendment Act 2016, due to commence operation in August 2018. The amendments in the Act facilitate the operation of the prescribed drug offenders amendments when they come into operation in August 2018.  The Attorney-General has said that they also address issues raised by the Office of the Director of Public Prosecutions in relation to the operation of the CAC Act as a whole.

A new section 59B (Exclusion orders based on financial interests of Crown etc) will be inserted into the CAC Act to allow the courts to make an order that property that has been subject to automatic forfeiture under the prescribed drug offender provisions be excluded from the operation of that automatic forfeiture because it is

This is intended to cover a \ situation where there may be something of value, for example,  a motorcycle, which would ordinarily be seized, but the offender has bought it using a loan and the bank still owns 90 percent of the value of the motorcycle. It would not, according to the AG, ". . . be economical for the Crown to seize that asset in that situation".

Minor amendments are proposed to section 209 of the CAC Act, so that where section 209 currently allows for administration costs to be covered by money received from seized assets, the amendment removes some potentially narrowing terminology from section 209 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 of the CAC Act is proposed to 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. This provision is so that the Director of Public Prosecutions is able to negotiate agreements with offenders or their representatives, particularly in cases where the assets may not be solely owned by the offender but may have multiple interests involved, such as a business. Avoiding having to deal with complex arrangements and paying off multiple third-party interests in a property.

Section 227 of the CAC Act is proposed to 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. This is intended to avoid a risk that, because of the way the section 227 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.

To further control the award of costs in such matters the SA Government's view is that, a regular award of costs typical of civil proceedings is sufficient for successful applicants against the Crown and an amendment is proposed to be  made to the regulation-making power in the CAC Act to provide that regulations may be made that prescribe that the matter about which the regulations are being made is to be determined at the discretion of the minister or the Director of Public Prosecution.

The Government's Overall Plan

In her second reading speech, the Attorney-General describes the Act as being part of a package of other legislation currently before the SA Parliament, which includes the Statutes Amendment (Drug Offences) Bill 2018 and the Correctional Services (Miscellaneous) Amendment Bill 2018, which show the "government's genuine commitment to fighting the scourge of drugs in our society".

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Criminal Assets Confiscation (Miscellaneous) Amendment Bill 2018 (SA) and second reading speech, available from TimeBase's LawOne service