Sussan Ley (Farrer, Liberal Party, Shadow Minister for Justice and Customs) Share this | Hansard source

I rise to speak on the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009. There is a long history of organised crime in Australia and, according to Dr Andreas Schloenhardt, an Associate Professor at the University of Queensland specialising in organised and transnational criminal law, it is extremely widespread in its reach. He says:

Organised crime can be found across the country and even regional centres and remote communities are not immune to the activities of criminal organisations.

The Australian Crime Commission likens organised criminal ‘enterprises’ to conventional businesses in the kinds of measures they adopt to ensure good business outcomes. These include risk mitigation strategies; the buying-in of expertise—legal and financial, for example—and remaining abreast of market and regulatory change. The principal difference, of course, is that their business activities and profits are illegal. Organised crime costs Australia at least $15 billion each year. Serious and organised crime not only results in substantial economic cost to the Australian community but also operates at great social cost. Organised crime can threaten the integrity of political and other public institutional systems through the infiltration of these systems and the subsequent corruption of public officials. Consequently, this undermines public confidence in those institutions and impedes the delivery of good government services, law enforcement and justice. Along with this are the emotional, physical and psychological costs to the victims of organised crime and their families and communities.

This bill builds on reforms proposed in the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009, which was introduced into the House in June 2009. As stated in the explanatory memorandum, the bill implements legislative aspects of the national response to organised crime that were not implemented by the first bill and includes additional measures to strengthen existing laws to more effectively prevent, investigate and prosecute organised criminal activity and target the proceeds of organised criminal groups. Whilst the second bill is a continuation of the first bill, it is important to note that it does the following: it strengthens criminal asset confiscation and anti-money laundering laws; enhances search and seizure powers and the ability of law enforcement to access data from electronic equipment; improves the operation of the National Witness Protection Program, including by increasing protection for current and former participants and officers involved in its operation; introduces new offences that would target persons involved in organised crime; facilitates greater access to telecommunications interception for the investigation of new serious and organised crime offences; improves the operation and accountability of the Australian Crime Commission; aims to improve money laundering, bribery and drug importation offences; and makes minor and consequential amendments to correct references to provisions. The bill also makes an urgent amendment to preserve the ability of federal defendants in Victoria to appeal a finding that they are unfit to plead.

The Senate Legal and Constitutional Affairs Legislation Committee has just concluded its inquiry into the bill. The coalition supports the comments made by the Liberal senators on the Legal and Constitutional Affairs Legislation Committee in their inquiry on the bill. Notably, we support the aim of the bill to enhance the capacity of the Commonwealth to prevent, investigate and prosecute organised criminal activity. We also endorse the view of the committee that some provisions in the bill may go further than necessary to achieve this purpose and, in doing so, may unnecessarily intrude on the rights of individuals. The Liberal senators supported the recommendations in the Senate committee’s report which seek to remedy this but queried whether those recommendations go far enough.

We consider that some additional changes to the bill, proposed by the Law Council, are worthy of consideration. In particular, the Law Council proposed: defining the term ‘facilitate’, which is used in the proposed association offences, to ensure it does not capture activities that are only of peripheral relevance to the commission of an offence; making the test under subsection 3L(1A) of the Crimes Act, for when data accessible from electronic equipment located at search premises may be copied, ‘reasonable grounds to believe that the data constitutes evidential material’; limiting the power of an ACC examiner to detain an uncooperative witness to circumstances where the examiner believes, on reasonable grounds, that it is necessary to detain the person in order to secure that person’s attendance before the court; and deleting proposed subsection 34C(3) of the Australian Crime Commission Act, which would provide that a certificate issued by an ACC examiner in relation to an alleged contempt is prima facie evidence of the matters that it sets out.

In relation to the organised crime offences proposed by the bill, the Law Council, in its submission to the inquiry on the bill, said:

In recent years, in the name of tackling serious and organised crime, law enforcement agencies have been provided with significantly enhanced investigative powers and new offences and civil proceedings have been created to allow law enforcement agencies to target the money trail.

It is of concern that despite the reported success of these measures, there is a suggestion that there is still a need for further fundamental law reform, to alter the very principles of criminal responsibility.

If every time law enforcement agencies feel impotent in the face of a particular type of offending, we amend not just the content of our laws but the manner in which we apportion criminal responsibility and adjudicate guilt, then the integrity of our criminal justice system will quickly be compromised.

This caution applies equally to the provisions of the bill proposing expanded search and information gathering powers and new powers for the Australian Crime Commission to deal with uncooperative witnesses. The Liberal senators on the committee noted that it was not sufficient justification for a continual expansion in the powers available to law enforcement agencies and the reach of criminal offences to point simply to the difficulties allegedly faced in pursuing particular groups of offenders. The task of law enforcement officers and prosecutors may well be challenging but to address this by diluting basic criminal justice principles and oversimplifying the arrest, prosecution and imprisonment of people would jeopardise the most fundamental individual rights. The changes proposed by this second bill—and by the first bill—ought to be viewed as being at the outer limit of the powers the parliament will countenance for law enforcement agencies. Furthermore, the Liberal senators noted their intention to monitor closely, through the estimates process, whether these powers were being exercised appropriately and whether practice bore out arguments that they were necessary to tackle organised crime. The coalition reserves the right to move amendments in the Senate along the lines of the recommendations made by the Senate committee, which I note have bipartisan support.

See this speech in context