Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

in reply—I thank members for their contribution to the debate, and indeed all members of the opposition. As all speakers have indicated, organised crime is a very serious matter for this parliament to address. Indeed, in his national security statement last November the Prime Minister elevated this issue to a national security concern. Organised crime costs the community in the order of $15 billion a year. That is an imprecise figure, but by way of comparison the entirety of work undertaken by each and every legal firm in Australia, including government legal services, totals about $12 billion, so it is estimated that the cost of organised crime exceeds the amount provided by very substantial infrastructure. From that $15 billion  taxpayers, of course, see no tax revenue, which means that resources are diverted from education, health, law and order—you name it in terms of the worthwhile things that state and territory governments do. Taxation is not received from that illicit activity.

Organised crime affects every person in Australia, whether it is concerns about safety on the streets, whether it is concerns about your car being stolen from your garage for rebirthing exercises or operations, whether it is concerns about your children becoming embroiled in violence—and we saw that earlier in the year at Sydney airport—or whether it is concerns about your children being exposed to illicit drugs. Organised crime is behind those impacts on Australians in their everyday lives. Organised crime can also ultimately distort confidence in our democratic institutions. While I think it is fair to say in Australia they are robust at all levels of government, that can certainly have an impact in our neighbouring countries where there are a number of pressures on the institutions of governance. Most certainly organised crime seeks, as one of its modes of operation, to infiltrate not only law enforcement organisations but also other government bodies. Whether they are involved in planning or approvals or development and so forth, they are attractive targets for organised crime to infiltrate, so it can potentially, over time, distort confidence in our democratic institutions.

From an economic point of view, organised crime also seeks to infiltrate areas of critical infrastructure—ports and airports being major areas for that. There is also evidence that organised crime seeks to infiltrate and operate alongside legitimate enterprises, indeed engaging some of the best professional advice to ensure its affairs are intertwined with legitimate industry. In those cases, it can place a real and significant barrier on the effective operation of the markets in those industries, making it very difficult for legitimate and decent businesses to remain profitable. So, for a number of reasons, organised crime is a very serious issue that needs to be addressed by taking, frankly, severe measures.

The spirit of the debate was constructive. The member for Farrer raised concerns and noted concerns that had been raised by the Senate Standing Committee on Legal and Constitutional Affairs in its report on this bill. I thank the committee for its work and the seven recommendations. The government will carefully consider those recommendations in terms of the further progress of the bill. Just addressing some of those matters, however, the first was with respect to safeguards for association offences and search related amendments. I note that concerns were raised by the member for Farrer in particular in relation to the criminal organisation and association offences, the search related amendments and the Australian Crime Commission amendments in the bill.

The bill contains a number of safeguards, however, to address those concerns. Firstly, with respect to the association and criminal organisation offences, the offences articulate clear boundaries of criminal liability by requiring proof by the prosecution of certain specific elements. The offences require proof that the offender was aware of a substantial risk that their conduct would facilitate serious and organised crime. The offences criminalise varying levels of involvement in a criminal organisation and carry penalties reflecting the spectrum of seriousness, from supporting conduct to more serious conduct of directing the affairs of the organisations. Defences will also apply to ensure legitimate associations are protected.

In terms of the search related amendments, the provisions in the bill comprehensively set out the uses that can be made of seized material. The provisions in the bill also ensure that compensation is available where damage is caused to electronic equipment or data following the equipment being operated on or away from the warrant premises. It must be appreciated that having access to electronic material is vital in combating organised crime because so much of the communication these days is via electronic means. The member for Farrer suggested data on searched premises should only be able to be copied if there are reasonable grounds to believe it constitutes evidential material. I would note that the bill will lower the threshold to ‘reasonable grounds’ to suspect. Lowering this threshold, we believe, is appropriate because the threshold for seizing a thing under a warrant is a belief, so it is appropriate that a lower threshold applies to copy data for further examination and also that in many circumstances an officer will not be able to form a belief as to whether all data constitutes evidential material—for example, when material is in a foreign language or where large amounts of data are stored on an electronic device. While officers are versed in the relevant law, clearly they do not have a representative of the Director of Public Prosecutions accompanying them on each and every entry pursuant to a warrant. This amendment will also benefit occupiers as it will allow them to keep possession of the electronic device. In addition, the copied data must be destroyed as soon as it is determined that it is not required.

A range of other safeguards are included in the bill. For instance, with respect to the Australian Crime Commission contempt powers, it is the court and not an examiner that determines whether a person is in contempt of the Australian Crime Commission. The court will determine whether a person is in contempt through its normal procedures for dealing with contemptuous behaviour. There are a range of procedural requirements that must be met before an examiner can refer a person to a court for contempt proceedings. These include provisions ensuring that the person has adequate notice of the basis upon which they are alleged to be in contempt of the Australian Crime Commission. A person cannot be punished for their conduct by contempt proceedings and criminal offences: the principle of double jeopardy will apply to prevent that. While an examiner can direct a constable to detain a person alleged to be in contempt of the Australian Crime Commission, there are requirements that the person be brought before the court as soon as is practicable.

More generally, as members know, serious and organised crime, as I have indicated at the outset, is a very serious threat to the community, business and government. It is vital that we take further decisive action to target organised crime and enhance the security of the Australian community. This bill implements resolutions agreed by the Standing Committee of Attorneys-General in April and August 2009 for a comprehensive national response to organised crime, and I thank the Attorneys of the states and territories for their assistance in these matters. It also builds on the first package of reforms that I introduced into the House in June 2009 and were passed in this House two nights ago and further strengthens the laws necessary to combat organised crime.

The measures in the bill focus upon enabling more effective prosecution of organised crime through new criminal organisation offences; enhanced money-laundering, bribery and drug importation offences; and strengthened investigative and criminal asset confiscation powers to assist in the detection and disruption of organised criminal activity. In particular, the enhancements to the investigative powers will better enable law enforcement agencies to examine and search electronic equipment and will permit greater sharing of seized material between Commonwealth, state and territory agencies. They will also improve the operation and accountability of the Australian Crime Commission and, further, will improve the operation of the National Witness Protection Program. While the bill contains these important measures to combat organised crime, it also contains appropriately strong safeguards to ensure accountability and to protect procedural fairness and natural justice.

I would like to thank the Senate Standing Committee on Legal and Constitutional Affairs for its detailed consideration of the bill. The government will carefully consider the Senate committee’s report and, as I have indicated, respond to its seven recommendations. The measures in the bill represent another significant step in a coordinated national effort to more effectively prevent, investigate and prosecute organised crime activities and to improve laws that target the proceeds of organised crime.

Question agreed to.

Bill read a second time.

Message from the Governor-General recommending appropriation announced.

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