Ross Hart (Bass, Australian Labor Party) Share this | Hansard source

I rise today, like the member for Burt, to speak on the Proceeds of Crime Amendment (Proceeds and Other Matters) Bill 2017. As we have heard this morning, this bill makes amendments to the Proceeds of Crime Act 2002 with the intention of closing loopholes that exist in our proceeds of crime regime. Specifically, these amendments address a gap in legislation which allows criminals to structure their affairs to avoid forfeiture or confiscation of assets that were not lawfully acquired. Under the Commonwealth's proceeds of crime regime, authorities are empowered to trace, restrain and confiscate the proceeds of crime against Commonwealth law. Two relatively recent court decisions have been referred to this morning which have prompted the government into action, consequently proposing the amendments to the act that we have before us today.

The first of these was Commissioner of the Australian Federal Police v Huang, which was a 2016 decision. This matter concerned an application under section 94 of the Proceeds of Crime Act. The particular issue that arose was the fact that the source of funds used by the offender in order to repay a loan meant that they couldn't trace or acquire the particular property. So, if you'd paid down a mortgage, that didn't thereafter taint the property that had been acquired. In response to this particular case, parliament passed amendments to the definition of 'lawfully acquired' within the act, which were intended to ensure that, where illegitimate funds are used to discharge a legitimately obtained security such as a mortgage, property or wealth obtained using the security is not considered lawfully acquired. I say again: a criminal may well have property which has been legitimately acquired, subject to a mortgage. In this case the mortgage was partially repaid. The question was whether the legislation at the time enabled the Commonwealth to deal with the property on the basis that it had been tainted by the money that had been repaid from the mortgage.

The second case is Commissioner of the Australian Federal Police v Hart & Ors—no relation, I assume—which, again, is a 2016 case. That case was analogous to the Huang case, where you had a repayment of mortgage, but in the Hart case the source of funds which were used for repairs or restoration of a particular asset were the issue. In other words, if you had a particular asset such as a house which had been enhanced, repaired or renovated, the question was whether the unlawful activity tainted the property and whether the source of funds used for repairing or restoring the assets could be relevant in determining whether there was forfeiture of the asset.

The amendments serve to align the Commonwealth unexplained wealth regime with other types of orders which are contemplated in the act to ensure that those provisions cover situations in which wealth is derived or realised directly or indirectly from certain offences. It also clarifies that property becomes proceeds or an instrument of an offence under the act when they are used to improve the property or discharge an incumbent security or liability incurred in relation to the property—in other words, a mortgage. Lastly, the act is amended to clarify that property or wealth will only be lawfully acquired in circumstances where the property or wealth is not proceeds or an instrument of an offence.

It is important to understand the context of what we're talking about here today. Serious and organised crime is estimated to cost Australia $36 billion each year. That's a cost to the economy that affects you and me. It affects organisations doing business within the Australian economy. The Australian Criminal Intelligence Commission estimates that this equates to $1,561 out of every individual's pocket. Of course, this is money not paid in tax; this is money lost to the economy. It is essential, therefore, that our proceeds of crime regime is kept up to date. The regime provides justice to the community by stopping criminals from financially benefitting from their crimes. Also, further crime is prevented by cutting off funding for future criminal endeavours and would-be criminals are deterred by reducing the appeal of the illegal activity. However, given the scope and impact of organised crime in our community, it is clear that legislation alone is not enough to tackle this deeply concerning problem. We on this side of the House believe that it's absolutely essential that we properly resource law enforcement. It's not enough simply to provide legislation that is able to be used by law enforcement if we don't adequately resource our law enforcers.

This bill will not and cannot make up for the fact that this government has cut Australia's law enforcement activity. As we heard earlier this morning, the other side, those opposite, claim to be tough on crime. They often come into this place and talk about issues like mandatory minimum sentences, for example. They beat their chests and claim that they are being tough on crime. But when you look at what they are actually doing, how they're resourcing the Australian Federal Police and enforcing law enforcement generally, you see that in the most recent budget they cut $184 million from the Australian Federal Police. Last year, 151 AFP officers were let go and the government threatened the pay and conditions of AFP officers. In my home state we see the ongoing effects of these types of cuts. For example, in Tasmania in 2014 the Abbott Liberal government removed all the Australian Federal Police from Hobart airport. You might ask the question, 'Why would I, in northern Tasmania, be concerned about whether we have an AFP presence in Hobart?', because we don't have a presence of AFP in Launceston, and we haven't had it for a significant period of time. The important issue—an issue which is totally lost on this government—is the fact that this decreased the total number of AFP officers in Tasmania from 30 to five. That was an 84 per cent reduction in AFP personnel in Tasmania. That affects the entire state; it's not something that affects just the capital city.

Tasmania, regrettably, is the only state where the capital city airport has absolutely no AFP presence. This has forced the diversion of Tasmania Police resources from ordinary policing activity to the protection of Hobart airport. This means that there is a diversion of precious resources away from community policing and general crime policing across the state to protect the Hobart airport. It's not doubted that the AFP are experts in fighting serious crime, such as drug trafficking and organised crime, and it's difficult to know how many of these crimes are going undetected in Tasmania because of this government's refusal to fund the AFP properly or to reinstate the presence of AFP in the state.

Last year, I'm proud that the Labor opposition committed to reinstating an AFP presence at Hobart airport to patrol the airport to prevent and detect crime and to keep passengers and workers at the airport safe. The restoration of a permanent AFP presence at Hobart airport will enhance our national security and improve security at the airport by enhancing the law enforcement's ability to detect national security threats, contraband, illegal drugs, federal crimes and other crimes. The restoration of this presence will also enable Tasmania Police to re-divert their officers and resources back to community policing, which should improve community safety in Hobart and across Tasmania.

Under Labor's policy the AFP presence in Tasmania will increase from five personnel to 21 personnel with at least two federal officers on duty at all times the airport is open. This is the type of resourcing that ultimately allows law enforcement agencies to do their job detecting and preventing crime and keeping our community safe. This government is happy to give lip-service on law and order, but so far we're yet to see a proper commitment to resourcing and supporting law enforcement agencies in their incredibly important work.

I'd also like to note that concerns were raised through the committee process regarding several aspects of this bill. The Parliamentary Joint Committee on Human Rights, for example, recommended that the government undertake a detailed assessment of the Proceeds of Crime Act to determine its compatibility with the right to a fair trial and the right to receive a fair hearing. The committee also noted that the proposed amendments may engage and limit the right to not be subject to arbitrary or unlawful interference with a person's home as the amendments affect orders that can be used to restrain and forfeit real property. Further, there did not appear to be a safeguard in place to allow the court to revoke a forfeiture order where a person has been acquitted of an offence or where their conviction has been subsequently quashed. It's really important, at this stage, to reflect upon the fact that there are some areas, such as law enforcement, where bipartisanship is truly appropriate. We can't afford to place national security, for example, in issue when we're considering the safety of our nation, and that also applies in this area of law enforcement. Of course, we must consider the rights of the individual. We also must consider representations that have been made by peak bodies, such as the Law Council of Australia, as to how, in practise, these amendments might work.

The Senate Standing Committees on Legal and Constitutional Affairs reported on the bill. They took into account a submission from the Law Council of Australia to the committee's inquiry, which raised an important issue of proportionality. They stated that there is a need for proportionality, which was especially critical, given that this legislation anticipates that there will be a low threshold in obtaining restraining orders. The legislation also contains strict exclusion tests, and there's a very limited judicial discretion to prevent forfeiture and the operation of forfeiture provisions. Just unpacking that for a minute, the issue of proportionality is important; it's something that I think this parliament needs to monitor.

The important issue is that, if there is a trivial application of proceeds of crime to the reduction of a mortgage or to renovate or repair a house, one would not want to see injustice occasioned, particularly to a perpetrator's family, where a house, where an asset, has been tainted by a trivial transaction. As presently drafted, and as advised by the Law Council of Australia, that is something that needs to be considered and needs to be monitored. Whilst Labor are satisfied that we should support the legislation through the House, it's perfectly appropriate that we do sound a note of caution with respect to issues like proportionality.

Labor will not oppose the passage of this bill through the House; however, we should also be vigilant about carefully examining this legislation to ensure that it is sufficiently robust to address what have been identified as significant gaps in our proceeds of crime regime. We also need to be mindful that we do not unnecessarily encroach on Australian individuals' rights and liberties. Again, as I indicated earlier, there is a gap, in many cases, between what the government professes it is doing with respect to issues like law and order and how it actually implements legislation. The job of a robust opposition is not simply to oppose. That's why Labor is not opposing this bill. But speeches like mine and the speech that was delivered by the member for Burt are really important signals to the wider community that there are concerns as to issues like proportionality, as to whether injustice might be occasioned in the operation of this legislation.

Question agreed to.

Bill read a second time.

Ordered that this bill be reported to the House without amendment.

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