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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Criminal Assets Confiscation (Prescribed Drug Offenders)
Amendment Bill 2011
A BILL FOR
An Act to amend the Criminal
Assets Confiscation Act 2005.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Criminal Assets
Confiscation Act 2005
4Amendment of long title
5Amendment of
section 3—Interpretation
6Amendment of section
6—Meaning of effective control
7Insertion of section
6A
6AMeaning of prescribed
drug offender
8Amendment of section 10—Application
of Act
9Amendment of section 24—Restraining
orders
10Amendment of section 34—Court may
exclude property from restraining order
11Amendment of section
46—Cessation of restraining orders
12Amendment of section
47—Forfeiture orders
13Amendment of section 48—Instrument
substitution declarations
14Amendment of section 57—Relieving
certain dependants from hardship
15Amendment of section 58—Making
exclusion orders before forfeiture order is made
16Amendment of section
59—Making exclusion orders after forfeiture
17Insertion of section
59A
59AExclusion orders
based on cooperation with law enforcement agency
18Insertion of section
62A
62ANo exclusion or
compensation where forfeiture taken into account in sentencing
19Amendment of section 74—Forfeiting
restrained property without forfeiture order if person convicted of serious
offence
20Substitution of section
75
75Extended
period
21Amendment of section 76—Excluding
property from forfeiture under this Division
22Insertion of sections 76A and
76B
76AExcluding property
based on cooperation with law enforcement
agency
76BNo
exclusion where forfeiture taken into account in sentencing
23Amendment of section 95—Making pecuniary
penalty orders
24Amendment of section 96—Additional
application for pecuniary penalty order
25Insertion of section
98A
98AProperty subject to a
person's effective control
26Amendment of section 99—Determining
penalty amounts
27Amendment of section 104—Benefits and
instruments already the subject of pecuniary penalty
28Repeal of section
105
29Amendment of section 106—Effect of
property vesting in an insolvency trustee
30Amendment of
section 107—Reducing penalty amounts to take account of forfeiture
and proposed forfeiture
31Amendment of section 108—Reducing
penalty amounts to take account of fines etc
32Amendment of
section 149—Interpretation
33Substitution of
section 203
203Proceeds
from sale of property
34Amendment of heading
35Amendment of section
209—Credits to Victims of Crime Fund
36Insertion of
section 209A
209ACredits to Justice Resources
Fund
37Amendment of section 219—Consent
orders
38Substitution of section
224
224Effect of
confiscation scheme on sentencing
224ACourt must not allow inspection etc of certain
material
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Assets Confiscation (Prescribed
Drug Offenders) Amendment Act 2011.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, 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
Long title—delete "proceeds and instruments of crime" and
substitute:
criminal assets
5—Amendment
of section 3—Interpretation
(1) Section 3—after the definition of conviction day
insert:
conviction offence, in relation to a prescribed drug
offender, has the meaning given in section 6A;
(2) Section 3, definition of extension order—delete
the definition
(3) Section 3—after the definition of premises
insert:
prescribed drug offender—see section 6A;
(4) Section 3—after the definition of property-tracking
document insert:
protected property of a person means property owned by or
subject to the effective control of the person that could not be taken in
proceedings against the person under the laws of bankruptcy (as modified by
regulations under this Act);
(5) Section 3—after the definition of search warrant
insert:
serious and organised crime has the same meaning as in the
Australian
Crime Commission (South Australia) Act 2004;
(6) Section 3, definition of serious offence,
(b)—delete paragraph (b)
(7) Section 3, definition of tainted property—after
paragraph (b) insert:
or
(c) property owned by, or subject to the effective control of, a
prescribed drug offender on the conviction day for the conviction offence (other
than protected property of the prescribed drug offender); or
(d) property owned by, or subject to the effective control of, a person
who has been charged with, or is proposed to be charged with, an offence where
the person would, if convicted of the offence, become a prescribed drug offender
(other than protected property of the person);
(8) Section 3—after its present contents as amended by this section
(now to be designated as subsection (1)) insert:
(2) A reference in this Act to an indictable offence
includes an indictable offence of a kind that is required to be prosecuted, and
dealt with by the Magistrates Court, as a summary offence under a provision of
any Act.
6—Amendment
of section 6—Meaning of effective control
Section 6(1)(b), (c) and (d)—delete "under the" wherever
occurring and substitute in each case:
subject to the
After section 6 insert:
6A—Meaning of prescribed drug
offender
(1) For the purposes
of this Act, a person is a prescribed drug offender if the person
is convicted of a serious drug offence (the conviction offence)
committed after the commencement of this section and—
(a) the conviction offence is a commercial drug offence; or
(b) the person has at
least 2 other convictions for prescribed drug offences and those offences
and the conviction offence were all committed on separate occasions within a
period of 10 years, not including any period during which the person was in
government custody.
(2) A conviction may be taken into account for the purposes of
subsection (1)(b)—
(a) whether the offence to which the conviction relates was committed
before or after the commencement of this section; and
(b) whether or not the offence to which the conviction relates has
previously been taken into account for the purposes of any proceeding under this
Act.
(3) In this section—
commercial drug offence means—
(a) an offence against section 32(1) or (2), section 33(1)
or (2), section 33A(1) or (2), section 33B(1) or (2) or
section 33C(1) or (2) of the Controlled
Substances Act 1984; or
(b) an offence against Part 5 Division 3 of the Controlled
Substances Act 1984 involving a commercial quantity or large
commercial quantity of a controlled drug;
detainee means a person who—
(a) is detained in a training centre within the meaning of the Young
Offenders Act 1993; or
(b) is detained as a result of being declared liable to supervision under
Part 8A of the Criminal
Law Consolidation Act 1935;
external serious drug offence means an offence against a law
or former law of the Commonwealth, of another State or of a Territory of a kind
prescribed by regulation;
government custody means—
(a) custody as a
prisoner or detainee; or
(b) custody under a law of another jurisdiction in the nature of custody
referred to in
paragraph (a);
prescribed drug offence means—
(a) a serious drug offence; or
(b) an offence against a former law of the State of a kind prescribed by
regulation; or
(c) an external serious drug offence;
serious drug offence means an offence against Part 5
Division 2 or 3 of the
Controlled
Substances Act 1984 that is an indictable offence.
8—Amendment
of section 10—Application of Act
Section 10—delete "This Act" and substitute:
Subject to any express provision to the contrary, this Act
9—Amendment
of section 24—Restraining orders
(1) Section 24(4)—delete "subsection (5)" and substitute:
subsections (5) and (5a)
(2) Section 24—after subsection (5) insert:
(5a) The court may not specify property in a restraining order that is
protected property of a person unless subsection (1)(c) applies to the
property.
10—Amendment
of section 34—Court may exclude property from restraining
order
(1) Section 34(1)(b)—after subparagraph (i)
insert:
(ia) —
(A) if the suspect has been convicted of the serious offence to which the
restraining order relates—
• the suspect has not become a prescribed drug offender as a result
of the conviction; or
• the suspect has become a prescribed drug offender as a result of
the conviction, but the property was not owned by or subject to the effective
control of the suspect on the conviction day for that offence or is property
that should not be subject to the restraining order in accordance with
section 24(5a); or
(B) if the suspect has not been convicted of the serious offence to which
the restraining order relates—
• the suspect would not become a prescribed drug offender if
convicted of the offence; or
• the suspect would become a prescribed drug offender if convicted
of the offence, but the property is not owned by or subject to the effective
control of the suspect or is property that should not be subject to the
restraining order in accordance with section 24(5a); and
(2) Section 34(2)(a)(ii)—delete "under" and substitute:
subject to
(3) Section 34—after subsection (2) insert:
(3) Despite any other provision of this section, if a court has, in
determining sentence in respect of a person’s conviction of a serious
offence, had regard to any forfeiture of property under this Act that might
result from conviction for the offence, the property cannot be excluded from a
restraining order relating to the offence on application made by the convicted
person.
11—Amendment
of section 46—Cessation of restraining orders
Section 46(4)—delete "Part 4 Division 2 or Division 3"
and substitute:
this or any other Act
12—Amendment
of section 47—Forfeiture orders
(1) Section 47(1)(a)—delete paragraph (a) and
substitute:
(a) a person has been convicted of 1 or more serious offences and the
court is satisfied that—
(i) the property to be specified in the order is proceeds of 1 or
more of those offences; or
(ii) the person is a prescribed drug offender and the property to be
specified in the order was owned by or subject to the effective control of the
person on the conviction day for the conviction offence (and was not, on that
day, protected property of the person); or
(2) Section 47(5)—delete "this section" and substitute:
subsection (3)
13—Amendment
of section 48—Instrument substitution declarations
Section 48—after "forfeiture order" insert:
under section 47(3)
14—Amendment
of section 57—Relieving certain dependants from
hardship
Section 57(1)(a)—delete "section 47(1)(a)" and substitute:
section 47(1)(a)(i)
15—Amendment
of section 58—Making exclusion orders before forfeiture order is
made
Section 58(1)(c)(ii)—delete subparagraph (ii) and
substitute:
(ii) the property to be specified in the exclusion order is neither
proceeds nor an instrument of a serious offence to which the application for a
forfeiture order relates; and
(iii) if the forfeiture order would be one to which
section 47(1)(a)(ii) applies—the property to be specified in the
exclusion order is not property that could be specified in a forfeiture order in
accordance with that subparagraph; and
16—Amendment
of section 59—Making exclusion orders after
forfeiture
Section 59(1)(c)—after subparagraph (ii) insert:
(iii) if the forfeiture order was one to which section 47(1)(a)(ii)
applies—the property to be specified in the exclusion order was not
property that could be specified in a forfeiture order in accordance with that
subparagraph; and
After section 59 insert:
59A—Exclusion orders based on cooperation with law
enforcement agency
(1) A court that has
made a forfeiture order or a court that is hearing, or is to hear, an
application for a forfeiture order, may make an order excluding property from
forfeiture (an exclusion order) if—
(a) a person applies for the exclusion order in accordance with
section 60; and
(b) the forfeiture order or the application for a forfeiture order (as the
case may be) specifies the applicant’s property; and
(c) the forfeiture order is, or would be, one to which
section 47(1)(a)(ii) applies; and
(d) the court is satisfied that the property to be specified in the
exclusion order is neither proceeds nor an instrument of unlawful activity;
and
(e) the court is
satisfied that it would be appropriate to reduce the effect of forfeiture
because the person has cooperated with a law enforcement agency and the
cooperation relates directly to a serious and organised crime offence that has
been committed or may be committed in the future.
(2) An exclusion
order under
subsection (1)
must—
(a) specify the
nature, extent and value (at the time of making the order) of the property
concerned; and
(b) direct that the property be excluded from the operation of the
forfeiture order; and
(c) if the property
has vested (in law or equity) in the Crown under this Division and is yet to be
disposed of—direct the Crown to transfer the property to the applicant;
and
(d) if the property
has vested (in law or equity) in the Crown under this Division and has been
disposed of—direct the Crown to pay the applicant an amount equal to the
value specified under
paragraph (a).
(3) An applicant for an exclusion order under
subsection (1) must
give written notice to the DPP of the application and the grounds on which the
order is sought.
(a) may appear and adduce evidence at the hearing of the application;
and
(b) must give the
applicant notice of any grounds on which it proposes to contest the
application.
After section 62 insert:
62A—No exclusion or compensation where forfeiture
taken into account in sentencing
Subject to section 59A but despite any other provision of this
Subdivision, if a court has, in determining sentence in respect of a
person’s conviction of a serious offence, taken into account any
forfeiture of property under this Act that relates to the offence or that might
result from conviction for the offence, the person cannot apply for an exclusion
order or a compensation order under this Subdivision in respect of that
property.
19—Amendment
of section 74—Forfeiting restrained property without forfeiture order
if person convicted of serious offence
(1) Section 74(5)—after "this section" insert:
and section 75
(2) Section 74(6), definition of relevant period,
(b)—delete paragraph (b) and substitute:
(b) if, at the end of the 6 month period starting on the day of the
conviction, an extended period applies in accordance with
section 75—that extended period.
Section 75—delete the section and substitute:
75—Extended period
(1) An extended period will apply for the purposes of the definition of
relevant period in section 74 if the applicant has, not later
than 6 months after the start of the day of the relevant conviction,
applied to a court under this Act to exclude the property from the restraining
order or to exclude the property from forfeiture and that application has not
yet been finally determined.
(2) The extended period applying is the period ending when the application
to exclude property from the restraining order or from forfeiture (as the case
may be) is finally determined.
21—Amendment
of section 76—Excluding property from forfeiture under this
Division
(1) Section 76(1)(a)—delete paragraph (a) and
substitute:
(a) a person has been convicted of a serious offence to which the
restraining order relates; and
(ab) a person applies for the exclusion order; and
(ac) the applicant owns the property; and
(2) Section 76(1)(b)—after "restraining order"
insert:
(or is security given under section 38(a)(iii) for the exclusion of
property that was covered by the restraining order or under
section 44(a)(iii) for the revocation of the restraining order)
(3) Section 76(1)(c)(ii)—delete subparagraph (ii) and
substitute:
(ia) the person convicted of the serious offence to which the restraining
order relates—
(A) is not, as a result of the conviction, a prescribed drug offender;
or
(B) is, as a result of the conviction, a prescribed drug offender but the
property is protected property of the person; and
(ii) the applicant's interest in the property was lawfully acquired;
and
(4) Section 76(3)—delete "person" and substitute:
applicant
22—Insertion
of sections 76A and 76B
After section 76 insert:
76A—Excluding property based on cooperation with
law enforcement agency
(1) The court that
made the restraining order referred to in section 74(1)(b) may make an
order excluding particular property from forfeiture under this Division
if—
(a) a person applies for the order; and
(b) the applicant has become a prescribed drug offender as a result of
being convicted of the serious offence to which the restraining order relates;
and
(c) the applicant owns the property; and
(d) the court is satisfied that the property is neither proceeds nor an
instrument of unlawful activity; and
(e) the court is
satisfied that it would be appropriate to reduce the effect of forfeiture
because the applicant has cooperated with a law enforcement agency and the
cooperation relates directly to a serious and organised crime offence that has
been committed or may be committed in the future.
(2) To avoid doubt, an order under this section cannot be made in relation
to property if the property has already been forfeited under this
Division.
(3) The applicant must give written notice to the DPP of both the
application and the grounds on which the order is sought.
(a) may appear and adduce evidence at the hearing of the application;
and
(b) must give the
applicant notice of any grounds on which it proposes to contest the
application.
(5) This section is in addition to, and does not derogate from,
section 76.
76B—No exclusion where forfeiture taken into
account in sentencing
Despite section 76 but subject to section 76A, if a court has, in
determining sentence in respect of a person’s conviction of a serious
offence, had regard to any forfeiture of property under this Act that relates to
the offence or that might result from conviction for the offence, the convicted
person cannot apply for an order under this Subdivision excluding the property
from forfeiture under this Division.
23—Amendment
of section 95—Making pecuniary penalty orders
(1) Section 95(1), (2), (3) and (4)—delete
subsections (1), (2), (3) and (4) and substitute:
(1) A court must, on application by the DPP, make an order (a
pecuniary penalty order) requiring a specified person to pay to
the Crown an amount determined under Subdivision 2 if satisfied
that—
(a) the person has been convicted of, or has committed, a serious offence;
and
(b) the person derived benefits from the commission of the
offence.
(2) A court may, on
application by the DPP, make an order (a pecuniary penalty order)
requiring a specified person to pay to the Crown an amount determined under
Subdivision 2 if satisfied that—
(a) the person has been convicted of, or has committed, a serious offence;
and
(b) the person's property includes an instrument of the offence.
(3) In considering whether it is appropriate to make a pecuniary penalty
order under
subsection (2),
the court may have regard to—
(a) any hardship that may reasonably be expected to be caused to any
person (other than the person against whom the order is sought) by the operation
of the order; and
(b) the use that is ordinarily made, or was intended to be made, of the
property; and
(c) the gravity of the offence or offences concerned; and
(d) any other matter the court thinks fit.
(4) A court is not prevented from making a pecuniary penalty order in
relation to a serious offence merely because of the existence of another
confiscation order in relation to the offence.
(2) Section 95(5)(b)—delete paragraph (b) and
substitute:
(b) if, at the end of the period of 9 months commencing on the
conviction day, an extended period applies in accordance with
section 75—before the end of the period of 3 months commencing
on the day the extended period ends.
(3) Section 95(7)—after "in relation to" insert:
benefits derived from the commission of
24—Amendment
of section 96—Additional application for pecuniary penalty
order
(1) Section 96(1)—after "offence or" insert:
a pecuniary penalty order against a person in respect of
(2) Section 96(1)(a)—delete "under this Division in respect of the
benefits or instrument" and substitute:
order in respect of the benefits or instrument (as the case may
be)
(3) Section 96—delete subsection (3) and substitute:
(3) Except as provided in this section, nothing prevents the DPP from
making more than 1 application for a pecuniary penalty order against a
person in relation to a serious offence.
After section 98 insert:
98A—Property subject to a person's effective
control
For the purposes of this Division, the court may treat as property of a
person any property that is, in the court’s opinion, subject to the
person’s effective control.
26—Amendment
of section 99—Determining penalty amounts
(1) Section 99(a)—delete "relating to benefits derived from the
commission of a serious offence" and substitute:
under section 95(1)
(2) Section 99(b)—delete "relating to an instrument of a serious
offence" and substitute:
under section 95(2)
27—Amendment
of section 104—Benefits and instruments already the subject of pecuniary
penalty
(1) Section 104(1)—after "benefit" wherever occurring insert in
each case:
or instrument
(2) Section 104(2)—delete subsection (2) and
substitute:
(2) For the purposes of this section, a pecuniary penalty imposed in
respect of a benefit includes a literary proceeds amount ordered in respect of
the benefit.
Section 105—delete the section
29—Amendment
of section 106—Effect of property vesting in an insolvency
trustee
Section 106—delete "purpose of assessing the value of benefits
that a person has derived from the commission of a serious offence, the" and
substitute:
purposes of this Subdivision, a
30—Amendment
of section 107—Reducing penalty amounts to take account of forfeiture
and proposed forfeiture
Section 107—after its present contents (now to be designated as
subsection (1)) insert:
(2) If a pecuniary penalty order relates to instruments of a serious
offence, the penalty amount under the order is reduced by an amount equal to the
value, at the time of making the order, of any instruments of the offence
if—
(a) the instruments have been forfeited, under this Act or any other law,
in relation to the offence to which the order relates; or
(b) an application has been made for a forfeiture order that would cover
the instruments.
31—Amendment
of section 108—Reducing penalty amounts to take account of fines
etc
Section 108(1)—delete subsection (1) and
substitute:
(1) The court may, if it considers it appropriate, reduce the penalty
amount under a pecuniary penalty order made in relation to a serious offence by
an amount equal to a monetary sum paid, or payable, by the person in relation to
the offence (or equal to any proportion of such a monetary sum).
32—Amendment
of section 149—Interpretation
Section 149(1)(a) and (b)—delete "property of" wherever
occurring and substitute in each case:
property owned by or subject to the effective control of
33—Substitution
of section 203
Section 203—delete the section and substitute:
203—Proceeds from sale of
property
Amounts realised from a sale of controlled property under section 200
are taken to be covered by the restraining order that covered the property and
must, for the purposes of this Act, be treated as if they—
(a) if the restraining order covered the property on the basis that the
property was proceeds of a serious offence to which the order
relates—continue to be proceeds of the offence; or
(b) if the restraining order covered the property on the basis that the
property was an instrument of a serious offence to which the order
relates—continue to be an instrument of the offence; or
(c) if the restraining order covered the property on the basis that the
property was owned by or was subject to the effective control of a particular
person—continue to be property owned by or subject to the effective
control of that person.
Heading to Part 7 Division 3—delete the heading to
Division 3 and substitute:
Division 3—Credits to funds
35—Amendment
of section 209—Credits to Victims of Crime Fund
Section 209(1)—after "Subject to" insert:
section 209A and
After section 209 insert:
209A—Credits to Justice Resources
Fund
(1) The Justice Resources Fund (the Fund) is
established.
(2) The Fund must be kept as directed by the Treasurer.
(3) The Fund is to consist of the following money:
(a) money paid into the fund under
subsection (4);
(b) any money appropriated by Parliament for the purposes of the
Fund;
(c) any money paid into the Fund at the direction or with the approval of
the Minister and the Treasurer;
(d) any income from investment of money belonging to the Fund;
(e) any money paid into the Fund under any other Act.
(4) Subject to any
direction of a court under this Act, any proceeds of confiscated assets of a
prescribed drug offender must be paid into the Fund.
(5) The Fund may be
applied by the Attorney-General (without further appropriation than this
subsection) in the absolute discretion of the Attorney-General for the following
purposes:
(a) for the provision of courts infrastructure, equipment or
services;
(b) for the provision of programs and facilities within the justice system
for dealing with drug and alcohol related crime.
(6) Nothing in
subsection (5)
authorises the application of monies from the Fund—
(a) to a law enforcement authority of the State for criminal investigation
or other law enforcement purposes (whether civil or criminal); or
(b) for a purpose that the Attorney-General has determined could be the
subject of a payment from the Victims of Crime Fund under section 31 of the
Victims
of Crime Act 2001.
(7) The Attorney-General may, with the approval of the Treasurer, invest
any of the money belonging to the Fund that is not immediately required for the
purposes of the Fund in such manner as is approved by the Treasurer.
37—Amendment
of section 219—Consent orders
Section 219(1)(a)—delete "applicant in" and
substitute:
parties to
38—Substitution
of section 224
Section 224—delete the section and substitute:
224—Effect of confiscation scheme on
sentencing
Despite any provision of the Criminal
Law (Sentencing) Act 1988, in determining sentence in respect of a
person’s conviction of a serious offence, a court—
(a) may have regard to any cooperation by the person in resolving any
action taken against the person under this Act; and
(b) must not have regard to any forfeiture (whether under this Act or a
corresponding law), pecuniary penalty order or recognised Australian pecuniary
penalty order that relates to the offence or that might result from conviction
for the offence, to the extent that the forfeiture or order applies to proceeds
of the offence; and
(c) must have regard to any forfeiture (whether under this Act or a
corresponding law), pecuniary penalty order or recognised Australian pecuniary
penalty order that relates to the offence or that might result from conviction
for the offence, to the extent that the forfeiture or order applies to any other
property; and
(d) must not have regard to any literary proceeds order that relates to
the offence.
224A—Court must not allow inspection etc of certain
material
(1) Subject to
subsection (2),
but despite any other provision of this Act or any other Act or law, a court
must not permit a person to inspect or obtain a copy of any material in the
possession of the court relating to proceedings in which a court excludes
property owned by, or subject to the effective control of, a suspect from
forfeiture under this Act on the basis that the suspect has cooperated with a
law enforcement agency and the cooperation relates directly to a serious and
organised crime offence that has been committed or may be committed in the
future.
(2) A court may
permit a person to inspect or obtain a copy of material referred to in
subsection (1)—
(a) with the written consent of both the suspect and the Attorney-General
(and, if such consent is conditional, in accordance with any conditions of
consent); or
(b) in accordance with the regulations.