The Supreme Court of South Australia has published an important decision about the Criminal Assets Confiscation Act 2005 (SA) (CACA). In Director of Public Prosecutions v Drazetic  SASC 35, Parker J has held that the CACA does not permit the DPP to obtain an order that restrains (freezes) all property that is owned and/or suspected to effectively controlled by an accused.
The respondents had each been charged with a serious offence (specifically a commercial drug offence). As well as wanting to restrain specific property (houses, cars, cash, bank accounts and the like) ((At .)) the DPP wanted the Court to freeze “all other property owned by, or under the effective control of” the respondents. The Court refused that additional order.
The DPP had advanced three arguments in support of the additional order, all of which were rejected by the Court.
Fundamentally those arguments all failed because s24(1) of the CACA provides simply:
A court must, on application by the DPP, make an order (a “restraining order”) that specified property must not be disposed of or otherwise dealt with….(emphasis added)
The DPP’s arguments and why they failed
First, the DPP argued that because all property owned or controlled by a person convicted of a commercial drug offence would be deemed to be forfeited it was necessary to alter the way in which s24 was read in relation to cases concerning such offences. His Honour rejected that argument at  to . Essentially he held it was not necessary to read the plain words of s24 in an expanded way.
Second, the DPP argued that “it is sufficient for the purposes of s 24 if a restraining order specifies property by reference to two classes. Those classes being, first, all property owned by or under the effective control of the suspect …”.
Not surprisingly in my view his Honour rejected that argument at  saying:
A serious obstacle to this second argument is the constant use within s 24 of the words “specified” and “specify” in connection with property.
His Honour continued at :
In my view, the constant use of the words “specify” and “specified” suggest a legislative choice that the property that is to be the subject of an application restrained by an order must be identified with precision…
At  he noted the need to ensure that a person (who could be charged criminally with breaching a restraining order) be left in no doubt as to whether or not any particular item of property was restrained.
Third, the DPP argued that the Court should make a Mareva injunction in its inherent equitable jurisdiction. ((At 102].)) Quoting ((At .)) earlier Federal Court authority his Honour appeared to agree:
… it is not, in my opinion, a proper exercise of the power to make Mareva orders to freeze the assets of a person to enhance the prospects of payment of any costs order that might be made in the future in favour of a regulatory authority
At  his Honour held:
… it is clear that the South Australian Parliament has elected not to empower the courts to make an order specifically restraining unidentified property.
The take home message is, as the respondents successfully argued: The task is simply a matter of statutory interpretation ((At .)) Section 24 requires the specification of the property to be restrained. That legislative direction cannot be avoided.
Final thoughts and implications beyond South Australia
The drafting of the CACA is unusual. Most proceeds of crime and confiscation statutes in Australia expressly allow for restraining or freezing orders over ‘all property owned by an accused’. Indeed the Proceeds of Crime Act 2002 (Cth) allows ‘all property’ to be restrained even if a suspect has not and is not proposed to be charged criminally. ((Section 18(2)(a) & (b).)) As such the decision in Drazetic probably has limited direct application outside South Australia.
However, I consider the decision has some relevance to other powers found in other confiscation statutes that enable Police, Courts and/or Examiners to direct that people produce specific documents. Those powers are often used by the authorities to argue that a person must produce a ‘class of documents’. I consider Drazetic a useful case in support of the counter argument that if the statute allows for compulsory production of a specific document then the document must be identified with precision. ((To quote  of the reasons.))
Perhaps the most remarkable feature of DPP v Drazetic is that it was run by the SA DPP. The respondents had been charged with South Australian state drug offences arising out of a joint operation between SA Police and the AFP (arising out of Operation Ironside – the covert operation involving ANoM encrypted phones).
Given the significant overlap between the federal drug offences found in the Criminal Code (Cth) and state drug offences, it is highly likely in my view that the AFP would have been successful had it applied for “all property” restraining orders under s18 of the Proceeds of Crime Act 2002 (Cth).